SCUBA Lawsuit Against BSA

[Kudu]

Parents of boy who drowned filed lawsuit against Boy Scouts of America

 

By Roxana Orelana

 

The Salt Lake Tribune

 

A Las Vegas couple is suing the Boy Scouts of America for negligence after their son died in July 2011 while in a summer camp scuba diving program in Bear Lake.

 

Christopher and Sherry Tuvell filed the wrongful-death lawsuit against the national organization this week in U.S. District Court on behalf of their 12-year-old son David Christopher Tuvell.

 

On July 13, 2011, David was participating in Discover Scuba Program, which is offered by and through several agencies and business, including the Boy Scouts of America, Bear Lake Boy Scout Aquatic Camp, Blue Water Scuba, dive instructors Lowell Huber and Corbertt Douglas and the Professional Association of Diving Instructors. All are defendants in the lawsuit.

 

The boy was diving with another Scout, a Scoutmaster and a diving instructor in about 14 feet of water in a roped-off area on the east side of Bear Lake. In the diving area, there is a line laid along the bottom of the lake to guide divers back to shore. The instructor and the Scoutmaster surfaced, leaving the two boys holding onto the line. When the instructor dove again, the two boys were no longer holding onto the line and were nowhere in sight, according to news reports. One boy was found farther out from shore and brought back in alive; it took about 30 minutes for searchers to find Tuvell, who was rushed to a hospital, where he was pronounced dead.

 

The lawsuit alleges that the defendants failed to ensure the boy was properly equipped, dressed and weighted. It states that they provided defective equipment and did not manage, monitor or supervise the boys air supply.

 

When the emergency situation arose, the parties failed to aid and properly rescue Tuvell, the lawsuit alleges.

 

"Defendant Corbett Douglas and other defendants failed to prepare and implement an adequate dive plan," the lawsuit states.

 

The parents claim all the defendants were negligent, strictly liable and failed to warn of the dangers posed by being part of the diving program.

 

The Tuvells seek an unspecified amount in punitive and compensatory damages.

 

http://www.sltrib.com/sltrib/news/54315249-78/lawsuit-diving-lake-defendants.html.csp

 

[Scoutfish]

It's like trhis: I want to comment, but I have absolutely no knowledge of what happened because I was not there.

 

But this begs me to ask: Of all the allegation the parnts made, how do they know themselves? Where they also not there when it happened?

 

"The lawsuit alleges that the defendants failed to ensure the boy was properly equipped, dressed and weighted. It states that they provided defective equipment and did not manage, monitor or supervise the boys air supply.

 

When the emergency situation arose, the parties failed to aid and properly rescue Tuvell, the lawsuit alleges.

 

"Defendant Corbett Douglas and other defendants failed to prepare and implement an adequate dive plan," the lawsuit states.

 

The parents claim all the defendants were negligent, strictly liable and failed to warn of the dangers posed by being part of the diving program. "

 

Do the parents really know this or do they just believe this in their hearts?

 

I mean, I'm not throwing blame at anybody, but as a parent, I do know that boys do not always do what they are told to do, and that during instruction, tend to think they "got it" already and don't need adults to tell them how to do things.

 

Again, Not throwing blam at either party, just asking a question.

 

And this is why G2SS has alot of over regulation and stupid rules.

 

Also why a cub scout can't pull a radio flyer wagon at a service project!

 

 

[T2Eagle]

Scoutfish,

 

A lot of the answer to your question has to do with how lawsuits proceed in our system and where the suit is at the time this article is being written. The reporter is probably summarizing the plaintiffs initial Complaint. Briefly, in your initial Complaint you try to list all the allegations that you reasonably believe could be true. You dont yet have all the information you will have because there hasnt been much or any Discovery process yet so there hasnt been much exchange of information between the parties. Part of the reason you start so broadly is that it is harder, more inefficient, and more costly for everybody the courts, the plaintiffs, the defendants -- to have to add allegations, that is amended complaints, later. So the case starts very broadly and then narrows down over time.

 

In this case it is possible that the plaintiffs attorney determined all the things that should have gone into a safe dive and then alleged that they all didnt. For instance this allegation, Defendant Corbett Douglas and other defendants failed to prepare and implement an adequate dive plan"

 

The plaintiff believes that there should have been a good dive plan before the dive began, but until they have statements, or depositions, or other information about exactly whether and what dive plan there was they maintain the allegation that the plan wasnt adequate. Now it could turn out that in fact the plan was fine and this particular allegation will be dropped and not be talked about at trial. Or maybe this is at the heart of the dispute, in which case the other allegations will fall by the wayside and this is what the trial will turn on.

 

What you dont want to have happen, for everyones sake, is to not have a particular allegation made and then spend six months or a year proceeding through the case and then figure out the real issue, like the dive plan, is something not yet alleged, because then everyone court, plaintiff, defendant, starts all over again.

 

Hope this was helpful.

 

 

[SeattlePioneer]

Thirty years ago when I was Scoutmaster, I asked a parent/attorney to review our Troop permission slip. She basically said that it gave permission by parents but placed all the liability for anything that went wrong on leaders, the Troop, CFhartered Organization, Council and BSA.

 

She wrote up a permission slips that warned parents that the activity --- any activity, could lead to death or injury and that in exchange for taking the youth along on the activity, the parents and the child and family agreed to hold the leaders, Troop, Chartered Organization, Council and BSA harmless for any injuries, illness or death that might occur.

 

We never had occasion to test such a release because of an injury, but no parent ever refused to sign the permission slip because of the language in it that I'm aware of.

 

Should we have permission slips designed to protect BSA and Chartered Organizations like this, or should BSA and Chartered organizations accept liability when Bad things happen?

[Scoutfish]

Just saying, It could be the scouts fault completely.

 

He could be like some of the scouts we have had: will argue with a wall and not give up. You say go left, he will go right . Tell them they have 5 minutes to get ready, and he will wait 10 before even starting and then explain why it's everybody else's fault.

 

Could be the case here.. COULD BE his fault too. Miybe one scout decided he was good enough to dive elsewhere and second scout was trying to bring him back. Maybe second scout only followd first scout because of the buddy system and that first scout is just hardheaded and would not follow direction.

 

In any way, it's a shame that this happened. I truely feel for the parents, but I have a hard time believing that the dive instructors were that nagligent in all those areas.

 

[SeattlePioneer]

>

 

 

Mightn't it be irresponsible and negligent to let a person like that participate in a dive?

 

When a young person is killed like that, you have to suppose that the lawyers will be spending whatever time is necessary to extract as much money as possible from all concerned.

 

My brother was killed in 1962 at age 15 in a snow avalanche while climbing on a Seattle Mountaineers climb. No lawsuit then, but judged by the facts as related in a report by the American Aline Club's review of the incident in "Accidents in North American Mountaineering," it was caused by the poor judgement of the climb leader.

 

No lawsuit then. I wouldn't count on that today.

 

 

[Beavah]

Yah, what T2Eagle said, eh? These are initial filings, so yeh hit everyone with da kitchen sink. Allegations are just allegations.

 

I suspect that as contractors, the dive shop signed an indemnity agreement with the camp, or the BSA will claim that it relied on the expertise of the dive shop. So this will likely narrow to a case between the parents and da insurer of the dive shop. And then it will settle. I doubt any insurer would come near takin' this to trial if the parents are bein' at all reasonable.

 

SeattlePioneer, the way waivers, assumption of risk documents and indemnity agreements are handled vary quite a bit between states, eh? Especially when we're talkin' about minors. Some states pretty much ignore waivers; others adhere to 'em or other doctrines of assumption of risk. For that reason, the BSA really can't give yeh any examples or advice, eh? But what yeh describe I'd consider generally sound practice. Good on yeh for gettin' competent counsel to look over yours, and I'd certainly encourage any CO and unit to do the same.

 

B

[Twocubdad]

You know, Beav, we've got 12 or 13 councils in our state. Twelve or 13 different corporations and I'm guessing all have corporate counsel.

 

I know stuff varies by state, but getting waivers appropriate to each doesn't seem insurmountable. My guess is there are other organizations or businesses which operate in more than one jurisdictions and have figured this out.

 

You probably remember I teach at camp school. There are several sections where local regulations are an issue. This is one, how different states treat medical stuff is an other, state licensing and regulation of camps is another big one. The camp school syllabus basically dumps this on the camp directors, who are already looking like a doe caught in headlights. Never could figure why the regional office (you remember when we had regional offices?) of the area directors couldn't have a handle on this and provide the proper informations.

[RememberSchiff]

Blue Water Scuba - Boy Scout Discover Scuba Program

http://www.bluewaterscubaoflogan.net/index.php?PID=8f7635bcd6&PGID=7b7f5943b2

Consider item 10.

"10. Each diver will be paired up with a buddy and start their dive. We start in the shallows and when feeling comfortable, move to deeper water. Scouts have enough air to dive for 30 to 45 minutes. The buddy teams will explore everywhere while having fun while getting use to the scuba gear and skills. At all times a scuba instructor is only seconds away from any scout should assistance be needed. This is why our dive area is clearly marked and the scouts will stay in that area."

 

Questions I have of the Salt Lake Tribune article

If true, why did the instructor not signal all divers (just 4?) to surface (14ft up)?

Why were scouts not under direct adult supervision?

 

A year later, what safety changes if any?

(This message has been edited by RememberSchiff)

[le Voyageur]

Hate to sound cold...but accidents are a normal part of every outdoor program...things that never happen, happen all the time

 

From my own experience, the majority of parents, as well as Unit Leaders often lack a real understanding of both the subjective, and objective risks involved in high adventure programs.

 

As I tell people - the backcountry ain't an amusement park. People die out here.....

 

 

[RememberSchiff]

Yes, but learn from our mistakes so we do not repeat them.

[le Voyageur]

Yes, we can learn from our mistakes. But, that's still a trap as it leads to the thinking that we've got our programs wired, that we've got the right "bomb proof" gear with "bomb proof" backups, that we've got the right people with the right experiences with certifications to match. Ergo, our programs are now "safe"....as I said, and keep saying.... accidents are normal - they complete the reality that is high adventure.

 

http://en.wikipedia.org/wiki/System_accident

 

 

 

.

[perdidochas]

As a former assistant scuba instructor, I kind of think 12 is a little young to be scuba certified (even though a lot of the agencies allow certification at age 10). My oldest son (age 13) has to wait until he is 14 to get certified.

[eisely]

I am not opining on this, but I want to note that G2SS states the following:

 

"■Each diver under 15 years of age must have an adult buddy certified as an open-water diver who is either the junior divers parent or an adult approved by the parent."

 

I just copied and pasted that, but I don't know if this policy was in effect at the time of the accident.

 

[Beavah]

At all times a scuba instructor is only seconds away from any scout should assistance be needed. This is why our dive area is clearly marked and the scouts will stay in that area.

 

Yah, well here's a bit of an educational moment that goes back to TwoCubDad's comments, eh?

 

This sort of language should never appear in any program literature, because parents (and courts, and juries) can read this as a sort of warranty, promise, or guarantee. Yeh have declared a standard of care which the parent relied on in giving permission, and folks are goin' to interpret it the way RememberSchiff did.

 

Of course, it's more than a bit foolish to promise that a scuba instructor is really goin' to always be able to get to a scout within seconds, because we all know or can imagine lots of times where that won't necessarily be the case. In fact, that's why yeh have a buddy diver. Similarly, in a summer camp program it's unreasonable to expect a certified open-water diver adult buddy for every boy.

 

Le Voyageur is therefore more correct, eh? In your communications to parents and to scouts, rather than emphasizing or assuring safety, yeh get better protection by emphasizing and being clear and forthright about risks. This is SCUBA diving. It involves being equipment-dependent underwater in an unfamiliar environment. Neither the environment, nor the behavior of participants, nor the risks from faulty equipment, equipment misuse, medical conditions, or momentary inattention by an instructor or buddy can be completely controlled. There is small but real chance that your son could drown.

 

Beavah