Assumed Risk Defense Fails in Diver's Lawsuit

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Posted by on March 30, 2008 at 14:32:24:

In Reply to: Drifting Dan's lawsuit can proceed posted by on March 30, 2008 at 13:58:44:

In a bizarre case of alleged negligence at sea, a Los Angeles judge has found that the assumption of risk defense does not apply to claims against a diving company that stranded a diver in the Pacific Ocean for five hours.

Daniel Carlock alleges Ocean Adventures is liable for leaving him "to drift at sea abandoned" after he was separated from his "dive buddy" while exploring an abandoned oil rig off Santa Catalina Island in April 2004.

A group of Boy Scouts who happened to be boating in the area eventually rescued Carlock. Ocean Adventures employees had allegedly misrepresented to the Coast Guard that he had gone missing at a second dive site several miles from the oil rig, delaying his rescue.

The defense argued in demurrers that being separated from a dive buddy is an inherent risk of the sport of scuba diving. But Superior Court Judge Edward A. Ferns disagreed, pointing out that

This argument presumes a risk inherent in the sport is that a Master Scuba Diver who undertakes a duty to account for those who accompany him on a dive, forgets to account for one of those persons in his charge and falsely reports that diver's location to potential rescuers.

Ferns also held in his order that the failure to inform the Coast Guard of Carlock's location was "sufficiently reckless" to support a claim for intentional infliction of emotional distress.

Carlock sued last year for $4 million in damages, claiming, among other injuries, that he developed skin cancer as a result of spending so long in the sun before his rescue.


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