Drifting Dan's lawsuit can proceed

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Posted by on March 30, 2008 at 13:58:44:

A recreational scuba diver abandoned in the ocean off Newport Beach in 2004 can take to trial his $4 million lawsuit against the dive shop that planned the trip, along with the company that owned the boat and its crew, a judge has ruled.

Los Angeles Superior Court Judge Edward A. Ferns denied a motion by Sundiver Charters of Long Beach and Venice-based Ocean Adventures Dive Co. to dismiss Daniel E. Carlock Jr.'s case on grounds he assumed the risk of being left in the ocean and that there were therefore no triable issues.

"While (the diving companies have) shown there is a risk inherent in the sport of diving that a diver will become separated from other scuba divers, it has not been shown that there is a risk inherent in the sport ... that divers will forget and abandon their co-participants in the ocean ...," Ferns wrote.

The judge took the dismissal motion under submission March 4 and issued his five-page ruling last Thursday.

Carlock's lawyer, Scott P. Koepke, hailed the decision, saying it will benefit the hundreds of thousands of divers in California who could potentially find themselves in the same position as his client.

"The risk of scuba diving does not include being left unaccounted for ... and left floating on your own," Koepke said.

Jeffrey C. Stodel, an attorney for Ocean Adventures, said he had not seen the ruling and could not immediately comment.

Attorney Matthew W. Monroe, for Sundiver Charters, could not immediately be reached.

The trial, scheduled for June 9, will deal with the allegations of negligence and intentional infliction of emotional distress in Carlock's suit, which he filed in January 2005.

Carlock's story grabbed international attention. Then 45, he was left in the ocean amid foggy conditions roughly seven miles off Newport Beach the morning of April 25, 2004, after getting separated from about 20 other divers who had been aboard the motor vessel Sundiver, owned by Sun Diver Charters.

When Carlock realized he was no longer with his "dive buddy," he says he swam to the surface and made many attempts to be noticed, including using his whistle and waving a yellow inflatable tube. But the Ocean Adventures staff, and the captain and crew of the Sundiver, "failed to maintain a proper lookout and notice Carlock in the water," his suit alleges.

Sundiver Capt. Ray Leslie Arntz, and Zacarias Reyes Araneta and dive buddy Andy Huber, who were also with the dive shop, failed to account for all divers before leaving for a second dive site, the lawsuit alleges.

At the second location, the boat staff noticed Carlock was gone, but called the U.S. Coast Guard to the second dive site to look for him, not the first site, where he had been abandoned, his suit states.

For nearly four hours, Carlock floated, prayed, took pictures of himself and kept a log of what was happening with a waterproof pencil and slate attached to his wetsuit.

He says he expected to die, but eventually was rescued by those aboard the tall ship Argus, which was carrying an adult supervising crew, young Sea Scouts and Boy Scouts.

He was treated for hypothermia, and the Coast Guard was radioed to retrieve him. Carlock says he was also badly sunburned from being in the ocean for hours and developed skin cancer. He had the cancerous lesions removed but continues to suffer physical and emotional trauma, according to his lawsuit.

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