CONCANNON & CHARLES, P.C.
A different kind of law firm
Dangerous Dive "Sites":
How to Avoid Creating Online Liability
David G. Concannon, Dive Center Business, January/February 2011
By the time you’ve finished reading this article, you should be able to:
Describe how statements posted to the Internet about dive accidents can be used by attorneys in making a case against a dive operation, and why you should not encourage these communications.
Define the often misunderstood “hearsay” rule of evidence and some of its exceptions, including “Sorry, my bad” and “$#%& my dad (daughter, son, wife, etc.) said.”
Explain why the old adage, “If you don’t know all the facts, don’t open your mouth” is sound advice when posting to the Internet – particularly when commenting on matters that could become litigious.
If I asked you to picture a “dangerous dive site,” what would be the first image to come into your mind? Is it a foreboding stretch of water with jagged rocks, strong currents and toothy predators?
When I ask you to think about a “dangerous dive site,” you should also consider a place with a URL address beginning with some form of the word “dive” and ending in “.com.” In other words, you should be thinking about an Internet dive site.
In the ocean on the Internet there are toothy predators circling about, but on the Internet the predators wear business suits. Like their ocean counterparts, they only “eat what they kill.” In the shadows of the Internet, quietly and stealthily they size up their prey.
The Names Have Been Changed to Protect the Innocent
I was born in 1965. This means I am too young to have watched original episodes of Sea Hunt on television, but old enough to remember watching Dragnet. Don’t get me wrong. I enjoyed watching reruns of Sea Hunt just as much as any other kid, it’s just that I don’t remember Lloyd Bridges uttering any pithy comments that still resonate more than four decades later. The same cannot be said of Dragnet. I can still remember sitting with my grandfather in front of an old black and white television set, as every show ended with Jack Webb placing the criminal in handcuffs while warning him that “anything you say can and will be used against you in a court of law.”
Who didn’t remember these words when they were a kid? Who didn’t play “cops and robbers” with their friends in the neighborhood? How many people can honestly say they have no memory of ever sternly reading the bad guy his rights while they were pretending to arrest him and place him in handcuffs? I would guess the answer is not many. If so, then why is it that so many people forget that “anything you say can and will be used against you in a court of law” applies now when they post things on the Internet?
Guess what? It’s not just that “anything” you say can be used against you; now everything you say will be used against you in a court of law. Not only that, but everything your customers, eye-witnesses, family members and even competitors, say about you on the Internet is routinely monitored, researched and collected by attorneys to use in litigation. The Internet is a gold mine. You are naive if you think the Net is not being mined for information that fuels our litigious society.
I have been involved in scuba diving accident litigation for more than 15 years. For at least half of that time, I have seen postings on the Internet used in litigation. Some of these postings date back to 2000, shortly after Al Gore “invented the Internet” and long before its usage was as common as it is today. Today, it is exceedingly common to see comments posted on the Internet being used as evidence in legal proceedings, and now a more disturbing trend has started to emerge: Internet postings are being used as a means to initiate litigation.
How a Dive Accident Turns Into a Dive Lawsuit
One of the unfortunate realities of scuba diving is that the sport involves risk. Every once in a while, somebody dies while scuba diving. Scuba divers number in the millions, and the number of dives conducted each year is believed to be in the tens of millions. However, according to statistics published by Divers Alert Network, every year, approximately 125 divers die in the North America, Europe and Asia. Of this number, between 50 and 60 scuba divers die in the United States. These fatalities occur for different reasons, in all sorts of dive sites and under various conditions. For the most part, they share only one common fact: almost all of these fatalities will be discussed on the Internet.
We live in the digital age. For better or worse, this means we have almost instant access to information. News has always traveled fast; now it travels at the speed of light. Information is conveyed around the world in the blink of an eye, via fiber optics, routers, servers and even satellites. What happens in New York can be transmitted instantly and known in Australia in less time than it takes to make a cup of coffee.
Unfortunately, what we have gained in speed is sometimes outweighed by what we have lost in accuracy. Fresh information is not always accurate information. More importantly, fresh information is often incomplete. Speculation is instantaneous, but the truth takes time to emerge.
When a person dies while scuba diving, certain events are usually set in motion: First, the authorities are notified. Next, a rescue is attempted or a body is recovered. Then, when the body is brought to shore, an investigation into the cause of the diver’s death is initiated by the local police and medical examiner’s office. The official investigation involves gathering facts and data in three general areas: medical, equipment and behavioral. An autopsy will be performed to determine every anatomical and medical fact and circumstance tending to show the condition of the body and the cause and means or manner of death. An equipment examination often will be conducted to determine the state of the diver’s equipment on their last dive, whether it functioned properly, and whether an issue with the equipment contributed to the cause and means or manner of death. Finally, witnesses will be interviewed to obtain information about the diver’s training, experience and behavior before and during their final dive. All of the facts learned during this investigation will hopefully lead to a determination of what caused the diver’s death.
Unfortunately, investigations take time and, in some cases, they may not lead to a final determination as to the cause of death. Uncertainty breeds litigation. Impatience and/or a lack of information cause families of the deceased to turn elsewhere for answers. Inevitably, they turn to the Internet for answers, and there they find threads containing discussions about their loved one’s death.
Many of these threads are started before a body is ever returned to shore or the formal investigation has had a chance to begin. In many cases, the threads are full of misinformation, speculation, finger pointing and the unsupported opinions of self-appointed experts, and this is where the trouble begins. The families will often turn to lawyers for answers to questions like: can we hold somebody responsible for the death of our loved one? In many cases, the answer is: maybe.
Unfortunately, the way the American legal system is set up, lawyers don’t have to have answers to every question before they can sue. The system is designed so the plaintiff can actually sue first and ask questions later. In my experience, when opinions and speculation about the cause of a diver’s death are posted on the Internet, a lawsuit is more likely to develop than not. Moreover, when a lawsuit is filed, it normally contains a verbatim recitation of the allegations posted on the Internet. Remember, anything you say can and will be used against you in a court of law.
The Case of the Missing Diver
Not long ago, a diver went missing at the site of a popular shipwreck in the Atlantic Ocean. When the diver was sufficiently overdue, the dive boat called the Coast Guard and initiated a search of the area. The Coast Guard responded by sending a cutter and a helicopter to assist in the search. A local television station monitoring the Coast Guard’s emergency radio frequency heard the communications between the dive vessel and the Coast Guard, and it posted a short entry about the missing diver on the “Breaking News” page of the station’s web site. A local diver heard a report of this breaking news and he posted an entry on a popular scuba diving Internet forum that a diver was missing at the popular wreck site. All of this transpired before the Coast Guard cutter ever arrived at the wreck site or the missing diver was found.
The story of the missing diver “went viral” on the Internet overnight, as scuba-related web sites around the world began reporting that a diver was missing at the popular wreck site. Some posts identified the diver by name, others by state of residence, and many expressed their opinions about the missing diver’s fate. A family member of the diver read these posts and responded with his own Internet post requesting additional information. Soon, additional family members and friends were posting on scuba forums, asking for information and offering their own theories about what happened to their loved one/friend, who they universally described as an experienced and meticulous diver. Eventually, news reached shore – and the Internet – that the diver did not survive.
Speculation about what happened to the diver began almost immediately, with self-appointed experts opining on the Internet that the diver’s mishap was caused by diver error, an equipment malfunction, lack of experience or a lack of supervision by the dive boat crew. Much of this speculation occurred within hours, well before the dive boat had even returned to shore or its passengers had made statements to the authorities. Speculative Internet postings continued for weeks. One unhelpful competitor of the dive boat went so far as to interview participants of the expedition and post his views about what happened on an Internet forum. The finger of blame was pointed early and often.
They’re Out There…
Meanwhile, at least four lawyers were monitoring the postings on the Internet. One of these lawyers worked for the victim’s family, another worked for a participant in the expedition, and two other attorneys worked for the families of divers who had died while scuba diving. Perhaps not surprisingly, a few days shy of the expiration of the statute of limitations in 2010, the diver’s family filed a lawsuit against all of the parties that had been blamed for their loved one’s death on the Internet forums. Among the parties sued were the dive boat, the trip organizer, and the scuba instructor that had certified the deceased diver and supposedly convinced him that he was competent to dive at the popular wreck site.
The family’s complaint against the defendants contained all of the allegations and accusations that had been posted about the defendants on the Internet, including that they failed to properly supervise the diver, properly train the diver and properly equip the diver. There was only one fact missing from the complaint, something that was overlooked by all of the so-called experts posting on the Internet: The medical examiner that conducted the diver’s autopsy concluded his death was the result of natural causes, specifically a pre-existing medical condition.
The medical examiner had reached this conclusion within months of the diver’s death. The diver’s family knew about it. The authorities also knew about it, and they had closed their investigation into the diver’s death as a result. But this seemingly important fact never found its way on to the Internet, or into the family’s lawsuit. Instead, the allegations leveled against the defendants are a matter of public record, as the lawsuit continues to wind its way through the judicial process. The parties that were sued will defend their actions in court, and the lawsuit will run its course. There may be a public defense posted on the Internet, but somehow I doubt it. For the purpose of this article, it is not important which party ultimately prevails in the lawsuit. This is just an example of what can happen when diving fatalities are discussed on the Internet.
Unfortunately, this is not an isolated incident. This scenario has repeated itself at least five times that I know of since 2008. Lawsuits have been filed in at least three of these cases.
Want to See Your Internet Postings in a Courtroom Proceeding?
Recently, I read an Internet post by an armchair legal expert who was opining about why his postings would never see the inside of a courtroom. The author said his postings would never be admitted into evidence because his statements outside of court were “hearsay.” The author was only half-right. His statements were, indeed, hearsay. What the author apparently failed to realize was that real lawyers and judges call his statements “admissible hearsay” because they fit into one of the nearly 30 exceptions to the “Hearsay Rule,” which says hearsay is not admissible as evidence.
In plainer language, hearsay is any of out of court statement, whether written or spoken, used in court to prove the truth of the matter asserted. Hearsay is not admitted in court because generally it's not trustworthy, as well as because of various constitutional principles such as the right to confront one's accusers. However, as I will explain shortly, there are so many exceptions that oftentimes hearsay is admitted more than excluded.
Please allow me to elaborate. Some of this is a little technical, but it will provide a brief but good education on how your Internet postings might wind up in court.
Rule 801(c) of the Federal Rules of Evidence, which is identical to most state rules of evidence (even the numbers are the same), defines “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” In other words, hearsay is any out-of-court statement offered in court to prove that a party’s allegation is true. The statement can include virtually all human verbal expressions, whether oral or written. It can also include nonverbal expressions, such as shaking one’s head to indicate “yes” or “no” or pointing at something to show another its location, as long as the expression was intended as an “assertion.”
Technically, any statement made outside the courtroom is considered hearsay, and it is inadmissible at trial under Rule 802. The aforementioned armchair legal expert got the law right -- up to a point. I am not faulting the armchair lawyer for only getting part of the picture. The rules on hearsay take the better part of a semester-long course on evidence in law school to adequately explain in the detail required to pass the Bar Exam, then they take years of practice inside the courtroom to know how to apply properly.
For your purpose, however, it is enough to understand that the “Hearsay Rule” does not give you unfettered ability to chatter about a dive accident on the Internet or otherwise without those statements winding up as courtroom evidence. If an Internet posting falls into one of the nearly 30 exceptions to the “Hearsay Rule,” it can be offered into evidence at trial.
I know, because I have done it.
The Exceptions that Swallow the Rule
"Sorry, my bad." One of the exceptions to the “Hearsay Rule” is a “statement against interest,” which is defined by Rule 804(b)(3) as, “A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.”
What does this mean? The person wouldn’t have said it if it didn’t have basis. Under this exception, an Internet posting in which the author says, “I lost sight of my buddy and I did not look for him after we were separated,” could be admissible, even though it is hearsay, because it could tend to subject the declarant to civil liability for failing to ensure the safety of his buddy. Similarly, a statement like, “I did not check my buddy’s equipment before we entered the water,” is bound to attract attention from an attorney monitoring the Internet. The statement is against the declarant’s interest, like when a teenager says “my bad” after accidentally throwing a baseball through the neighbor’s kitchen window.
This exception arises in lawsuits against dive boats, where the dive boat crew allegedly failed to check a diver’s equipment before he or she entered the water. If a member of the dive boat crew posts a statement on the Internet saying, “we did not check the diver’s equipment before he entered the water because it was not our responsibility,” you are going to see this statement used in court.
News flash: Somebody is always held responsible for failing to check a diver’s equipment; it might be the diver or it might be the dive boat, or both.
It might not even matter if the diver signed a waiver accepting this responsibility. The waiver may not be enforced by the court and the statement may come into evidence as an admission of liability.
"$#%& my dad (son, daughter, wife, etc.) said." Another exception to the “Hearsay Rule” is a “statement of personal or family history,” which is covered by Rule 804(b)(4). This rule states that a statement concerning the death of another person is admissible “if the declarant was related to the other by blood, adoption, or marriage or was so intimately associated with the other’s family as to be likely to have accurate information concerning the matter declared.”
To use a recent example that I read on the Internet, the postings of the daughter of a deceased diver on a popular scuba diving forum concerning the circumstances of her father’s death really are admissible in court, despite her disclaimer that she hopes they will not be. Similarly, the Internet postings of the family spokesman of another deceased diver saying the diver had a history of diabetes and prior heart attacks can and will be used in a court of law in defense of a lawsuit brought by the diver’s family, especially where the autopsy report indicates that the diver had a heart attack underwater and his death was not caused by the negligence of a defendant.
"I am expert, hear me roar." One other exception to the “Hearsay Rule” bears mentioning. Rule 703 permits an expert witness to give an opinion based on any type of information, including hearsay, if it the information is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” When the expert testifies, she can tell the jury about the hearsay she relied upon in forming her opinions, even if the party calling the expert is forbidden from offering the hearsay as evidence at trial. More on this “backdoor” exception follows.
Recently, it has become fashionable for members of the diving community to express their opinions about the safety of a particular piece of diving equipment or a particular diving practice, and it is not unusual for debates over the safety or Product X versus Product Y to rage daily on scuba forums across the Internet.
What if, theoretically, an expert in a scuba diving lawsuit tries to express an opinion about the safety of a particular product, saying that anecdotal reports on the Internet indicate that “1 in 10” divers are likely to get hurt or be killed while using a particular type of scuba gear?
Ironically, this statement may come into evidence “through the backdoor” to the “Hearsay Rule” provided by Rule 703. Rule 703 also says that “the facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.” What this means is that the facts or data underlying the “1 in 10” opinion may not be disclosed to the jury unless the judge finds that the data is reliable, but the expert’s opinion based on this information can be expressed so long as the expert says it is “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.” Conveniently for the party trying to use the “1 in 10” opinion to support their case, the jury may hear the opinion; however, the equipment seller or manufacturer may not have any opportunity to show that the opinion is based on flimsy or unreliable information.
These are the types of battles trial lawyers relish, but they are not so much fun for the clients that have to pay the bills when litigation ensues or, worse, pay the judgment when a case is lost due to impertinent remarks posted on the Internet. The bottom line is, whatever you say on the Internet, or whatever somebody else says about you, is likely to be seen or heard inside the courtroom. Now that you know a little bit more about how statements on the Internet can be used against you, maybe you will have a better understanding of how posting on Internet “dive sites” can be harmful to your health, or at least to the health of your business.
Speak No Evil
This brings me back to my childhood and some other memorable quotes from my older, wiser family members that would apply to this topic: “If you don’t have anything nice to say, don’t say anything;” “If you don’t know all the facts don’t open your mouth;” and “Nobody ever learned anything while they were talking.”
Scuba divers love to gossip. More importantly, scuba divers love to gossip on-line. If you choose to do so, just remember what Joe Friday used to say, “Anything you say can and will be used against you in a court of law.” Don’t be surprised if somebody responds to one of your posts with, “I’ll see you in court.”