A scuba diver abandoned off the coast of Newport Beach for four hours in 2004 can go forward with a $4-million lawsuit against the trip`s organizers, a Los Angeles County Superior Court judge has ruled.

Dan Carlock of Santa Monica was 46 when he signed up for the dive organized by Ocean Adventures Dive Co. aboard a boat operated by Sun Diver Charters LLC of Huntington Beach.

About 12 miles off the coast, according to Carlock`s lawsuit, he got separated from his dive buddy and was left behind; the boat`s crew didn`t report him missing until after a second dive at a different site.

Eventually, Carlock was rescued by a passing group of Boy Scouts and Sea Scouts on another boat, but not, his lawsuit contends, before suffering "substantial losses, including anguish and shock, embarrassment, humiliation" and skin cancer resulting from exposure to the sun.

Lawyers representing Sun Diver Charters and Ocean Adventures, at whom the lawsuit is aimed, had moved that the judge issue a summary judgment against Carlock on the grounds that, by participating in the dive, he had assumed certain risks -- thereby waiving his right to hold the operators responsible.

Judge Edward A. Ferns disagreed, however, ruling in a decision announced Wednesday that being abandoned at sea is not a risk inherent in the sport.

"Mr. Carlock is elated that the court has applied the law in the meticulous way that it did so as to provide protection for tens of thousands of recreational scuba divers throughout California and the nation," his lawyer, Scott P. Koepke, said Wednesday.

Stephen Hewitt, an attorney representing Ocean Adventures, expressed disappointment.

"All the defendants are united [in their opinion] that this is really an unfortunate accident," he said, "but it`s a risk associated with boat diving and scuba diving."

The case is scheduled for trial June 9.

Comments

MonkeyDiver - 9/30/2009 6:08 PM Just a late comment on this that should be noted. The Sundiver was chartered by a dive shop that day which had their own DM and were completely responsible for keeping tabs on their own divers. While there was certainly a lot of blame to go around, the boat owner and crew got nailed for somthing they had no part in. Their normal "open boat" procedures would have prevented this in the first place.

divemaiden - 4/05/2008 7:32 PM Getting left behind is not an inherent risk of diving. I’ve been on dive boats with 30 or more divers. They always do a roll-call after each dive to make sure everyone’s on board before lifting anchor to go to another dive site. Just because you have (or are supposed to have) a dive buddy looking out for you doesn’t relieve the dive op from their responsibility of making sure everyone is back on the boat. As a loner, I’m often paired up with someone I don’t know. Some of whom are idiots and take risks I’m not willing to take and go to depths that are out of my profile depth. When I’ve tried to signal them, they’ve ignored me. So don’t blame the dive buddy, he might have thought he was the one who was abandoned by the fellow and thought the guy was already aboard when he came up. As for the amount of the suit, that’s just a number to give a lot of elbow room for negotiation. Nobody expects to get that amount.

nice-diver - 4/04/2008 8:36 PM i agree, why didn’t the buddy speak up, who did the bad buddy do the second dive with???

NWKatShark - 3/30/2008 5:44 PM Yeah, the Attorney probably figures the suit can start at 4 Mil and settle out for 1.5 Mil. Let’s see, the Attorney’s fees, less the Aloe for the "cancer treatment" amounts to $1,499,992.00

okmister1 - 3/30/2008 7:22 AM I’d support the judge if he through the case out over that bogus skin cancer claim. But that charter company does deserve to pay, or at least the boat crew. I accept that bad things can happen on the ocean, including getting lost at sea. BUT, the crew didn’t even notice in a decent amount of time. That should cost them. They accepted that they’re taking people out on an inherently risky trip and they’re supposed to meet their half of the obligation to make it as safe as possible. An accurate head or even better Roll Call count is the most basic part of that responsibility.

Kirkpfeil - 3/29/2008 5:05 PM 1 million an hour? WOW!! Negligance was definitely an issue wether it was the Captain or the "DiveMaster" and should never have occured with the Accounting Principles that are in place for divers and are or should be for Boat Captains, by the way, why did the his buddy NOT say anything until the 2nd dive? Skin cancer in 4 hours, Incredible! was he not wearing a "Wet" or "Dry" suit? I am truely sorry that he has been diagnosed with skin cancer but did this episode really give him skin cancer? I understand that he must of felt very paniced and scared but embarrassed? This could possibley suggest that he might have been slightly at fault. I do think there should be a financial judgement based on neglegance but nothing more or less.

CaliforniaKeith - 3/27/2008 9:53 PM If the crew didnt walk around & take a head count & someone will remember the crew & their normal habits. Is it a rule for a head count before moving?? If not, then the captain has bad control over his crew & bad departure proceedures.What a way to retire,, 3-4 divers telling the crew yeah everone is here, lets go, or was the crew in on it? With our boats off our coast doing the 1000s of trips, was someone left behind??

CaliforniaKeith - 3/27/2008 9:52 PM I would have used a fin to cover& been floating watchin below & air through my snorkel.I am a boat owner& have had MANY MANY people on my boat. The captain is responsible for all, the rule of the sea. All the divers that have been on my boats, what is the first thing that happens when you come up.. Oh, how was the dive? did you see? air? WOW that was blah blah. Everyone CANT shut up about the dive. Like the other poster,, how can your buddy not know missing? Sounds like a setup, Buddy tell them im missing at the end of next dive, come back & get me & we will take them for all & dive the world after that.

NWKatShark - 3/27/2008 8:16 PM What it comes down to is no true justice for the diver. It’s about money and greed. A majority of the 4 Million will go to the Legal Counsel and the Charter Operator doesn’t care about it’s clientel, just move the cattle in-n-out, make money. The Operator has a BASIC responsibility to take a head count prior to leaving the site. I think failure to do that clearly puts them at fault, anything following that is inconsequential. I say, let’s bring back good ’ole public executions. Both the violators of human dignity AND the Attorneys. I mean, c’mon, it’s reality TV taken to a new and exciting level of entertainment. Larry

SKEETER - 3/27/2008 3:43 PM I and my dive buddy was lost for over two hrs. But the boat never left us. Thay and the cost gard looked. I think every dive boat in west palm was out looking. The wind and rain came, the seas got ruff and thay lost the ball. But to just leave I can`t fathem that. That is not good and not paet of the risk factor.

dalehall - 3/27/2008 8:44 AM We were discussing this in one of my other forums. I agree that you’re not going to get skin cancer from four hours of exposure, so that part, IMO, is bogus. But, being left behind and not being reported missing until after a second dive is pretty negligent. I sign waivers to release the Dive Op in case I drown or make a stupid call while diving. But, I don’t waive Dive-Op stupidity. First off, I’d kick my so-called "buddy’s" [ at ] $$ for letting the boat leave without me. But, the boat should have a roster and checked all names prior to leaving. No excuse for leaving anyone behind and diving another site. **D**

GirlDiver - 3/27/2008 8:29 AM Ok, I "get" that being abandoned off the coast is NOT an inherent danger that we sign a liability release form when we dive. But $4 million dollars? And how exactly do you get skin cancer in a 4 hour period? I`ve thought about moving to San Diego...but if this is the type of lawsuit coming out of Cali...well, I don`t know that GirlDiver.com could afford it.