The Biggest Dive Lawsuit Payout to Date

Seems like settlements for dive-related lawsuits are happening more often, and the payouts are growing. In our April issue, we reported on the $7.8 million settlement for professional underwater photographer Michael Prickett, who was bent on a shoot in Rangiroa. It was the largest to date. That has now been surpassed by a $12 million settlement for a father and son who suffered severe head injuries when struck by a dive boat's propellers on a Florida Keys dive in 2011.

Calvin Adkins, then 11, and his father, Jared C. Adkins, then 39, both of Harrington, DE, booked with Florida Keys Dive Center in Tavernier to dive aboard the 46-foot Big Dipper. Both father and son were certified openwater divers; Jared had dived multiple times with the Florida Keys Dive Center and had obtained his PADI instructor credentials there.

At 9 a.m. on August 9, 2011, the Big Dipper reached Conch Reef, nine miles south of Key Largo, with 21 divers aboard. The pair had made two dives aboard the Big Dipper without incident the day before. However, the boat's regular captain wasn't on board that day; another Florida Keys Dive Center employee, John Brady, was captain. Then they changed the dive from a standard anchored reef dive to a drift dive.

The Big Dipper, a Newton dive boat, has a restraining wire across the stern platform area to stop access to the water until it's unclipped and the crew announces that diving can commence. While port and starboard visibility was unrestricted from the main deck and the helm station that day, two large safety rafts stacked aft of the helm station blocked the captain's direct line-of-sight from the helm. This not only obstructed Brady's view aft for normal maneuvering, he also couldn't see the lower deck and stern platform, where divers would enter the water and re-board. Not good for a captain who's unfamiliar with the boat. Because there was no visual contact between Brady at the helm and William Burton, the divemaster who was helping divers on the dive platform, communication between the two was by voice commands and responses -- Brady had to place the throttles on neutral and leave the helm so he could walk back and yell "Dive" to Burton.

Three groups of divers were to enter the water at different "drop" periods as the boat maneuvered in the current. The seas were choppy, and the wind blowing at 7 to 14 miles per hour. The Adkinses were in the third group; Calvin was going to be doing his first drift dive. After the first two teams entered the water, Jared and Calvin moved to where Burton steered them to on the deck, saw the "open" platform restraint wires, and heard the command, "Dive, dive, dive" from Brady, who had the engines going. They stepped off the platform into the water. But then the boat backed over them with its engines in reverse.

Both Jared and Calvin suffered severe and nearly fatal injuries to their heads, skulls, brains and upper torsos. It was a miracle they weren't decapitated; Calvin survived because the boat propeller hit his tank first, cutting it off his back, then hit him on the head. Jared was hit by the other propeller. The Big Dipper rushed to dock, and the Adkinses were sent by ambulance to Mariners Hospital for evaluation. Jared was then sent to Baptist Hospital for surgery, while Calvin was air-lifted to Miami Children's Hospital. Both underwent emergency craniotomies, in which part of the skull is removed to allow a swelling brain room to expand. Calvin later underwent a cranioplasty -- the repair of a damaged or deformed skull using bones from elsewhere on his body. Both father and son suffered "permanent injuries, including brain damage and skull fractures," court records state; Calvin had a six-inch steel plate inserted into his skull, but because he is still growing, the plate must be replaced every six months.

The Adkinses filed a federal civil lawsuit against the dive center in April 2014. Brady and Burton initially said that the "Dive, dive, dive" command was not given. However, the restraining wire on the stern platform had been dropped by Burton, a tacit signal to divers that they could enter the water. One witness testified that Burton had specifically asked Brady if it was okay OK to begin diving and jump into the ocean, and Brady replied, "Dive, dive." Two other divers on board testified that they, too, heard Brady.

When inspectors saw the two life rafts blocking the helm station's view of the back of the boat, they deduced that a lack of visuals combined with the loud engine noise meant it was hard for Brady and Burton to see or hear any communication between them.

Then Brady changed his story, saying that he did yell, "Dive, dive, dive" while putting the engines in neutral. He told investigators, "Shortly thereafter, I heard an odd sound and yelling. I immediately shut the engines down and then noticed a body floating alongside the boat with blood in the water ... I had explained the procedure we would use for this dive .... My mate and I also confirmed the procedure that we would use, which was not to allow any divers to enter the water until I instructed him them to do so by saying "dive, dive, dive."

However, Burton never changed his story, maintaining he did not hear Brady's "dive" signal, despite at least four other people testifying that they had. He was never given an alcohol test by his employer, so it's unknown whether he drank or took drugs the day of the dive. (Florida Keys Dive Center admitted that they had not complied with state and Coast Guard requirements for periodic drug testing of employees.) Burton's denials raised questions about not only his truthfulness but his state of mind on the boat.

With so much evidence against them, the defendants decided to settle on May 15, with Florida Keys Dive Center agreeing to pay $11 million to Calvin Adkins and $1 million to Jared Adkins. Court records also stated: "As part of this settlement, Big Dipper will provide the boat propellers involved in this accident to Jared C. Adkins." The settlement must be approved by the court, but it is rare for judges to reject civil settlements agreed upon prior to trial.

Bret Gilliam, a regular Undercurrent contributor and one of the country's top litigation consultants in such cases, served as the plaintiffs' expert witness for diving and maritime liability. He says, "This is perhaps the most egregious breach of duty and poor operation of a dive vessel that I have seen in my 45-year career. The fact that the captain could not even see the aft deck from the helm and had such poor communication between him and his crew is astounding. Even worse, he lied about his actions in the immediate aftermath to investigators. Every single witness testified that the command to commence diving had been given and that the Adkinses were actually assisted into the water by the divemaster. Yet, both men denied their actions despite the overwhelming independent evidence. It truly is a miracle that Jared and Calvin survived. My heart goes out to them, and I wish them success in their continued recovery."

The lawsuits filed by the Adkinses and by Prickett in Rangiroa show serious breaches of conduct in the dive crew involved. What's happening to dive training, not just for divers, but instructors and boat captains? Do these big payouts indicate a pattern of dumbed-down dive instructor and crew training? Does an instructor who entered training after making only 40 dives (that's the PADI requirement) have enough on-board and in-water experience to behave professionally, regardless of the training?

The upshot is that divers must be ever vigilant when they conduct their dives, because as these two cases show, blind reliance on a "professional" crew can fail you.

- - Vanessa Richardson