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January 2017    Download the Entire Issue (PDF) Available to the Public Vol. 43, No. 1   RSS Feed for Undercurrent Issues
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Judge Rules in Deceased Diverís Familyís Favor

when the liability waiver doesnít hold up

from the January, 2017 issue of Undercurrent   Subscribe Now

A 2012 death of diver Bill Savage on the Big Island of Hawaii led to a law suit over the negligence of the dive operator. The diver had signed a waiver, but the court refused to uphold it. Is it the wave of the future or just an anomaly? Here is a summary of the law suit, followed by a commentary by legal expert Phyllis Coleman.

* * *

Inexperienced divers, Bill Savage, 49, his 17-yearold daughter Chelsea (a snorkeler) and 13-yearold son Nicolas, (a recently certified Junior Open Water Diver) and wife Sandra Hambrook, from Calgary, Canada, took a trip to Hawaii in 2012. Because they had not dived since a trip to Maui in 2010, the family took the precaution of enrolling in a refresher course with a local dive shop before they left their Calgary, Canada home.

In Kailua Kona, after explaining they were inexperienced divers, they booked dives with Hawaiian Scuba Shack. On the second day, they went to a site called "Suck 'em Up, Skull Cavern," because someone had asked to see lava tubes.

Weather conditions were calm and Jay J. Smith, the owner Shack, testified in court that his boat skipper, Dennis McCrea, was able to enter the water to affect a mooring without difficulty. Throughout the proceedings, the defendants maintained that there was never any intention for the divers to enter the tube, however, Smith testified that he planned to take the divers to the entrance of Skull Cavern, settle near the bottom, assess their skill level and competency, then based on the conditions decide whether the divers should enter Skull Cavern no further than the archways. Neither Sandra, Nicolas, nor Bill Savage had training specific to overhead environments.

The surge and wave sets in shallow water can make entering Skull Cavern dangerous, even for experienced divers. Smith admitted that he did not give a specific warning about the waves and surge. He entered the water ahead of the other divers, who descended the anchor line together. Son Nicolas testified that Smith entered the cave, followed by his father. However, Nicolas was swept away from the entrance. Deciding conditions were too uncomfortable, he returned to the mooring line, with his mother Sandra following.

After exiting the cave, Smith followed Bill to the surface, where McCrea, the instructor on board, witnessed Bill letting air from his BC in order to resubmerge. A few seconds later, Bill was back at the surface without his regulator in his mouth, "thrashing about and looking panicked." Both daughter Chelsea, McCrea, and Smith said they heard Bill calling for help. He was without his regulator or mask.

The Court heard testimony on how a diver may be swept upward by the force of hydraulic surge action in and around Skull Cavern, causing him to reach the surface abruptly and that the divers were given inadequate warnings about the conditions and entering a lava tube.

Smith rushed to the stricken diver, who had been underwater for "about a minute." He was about 15 feet (5m) deep. It took Smith another minute to get him to the surface and tow him to the swim step of the boat. McCrea, however, contradicted Smith's evidence saying it took around four minutes in total. Unfortunately, the dive computers that might have included information regarding this timing had gone missing. Despite rescue breaths and chest compressions, Bill had no pulse. It took ten minutes to return to the harbor during which time there was no attempt to administer oxygen. An ambulance rushed him to the local hospital, where he was pronounced dead.

The Court found that Bill Savage was conscious of his impending death for up to two minutes. The wife and two children of the deceased witnessed the failed attempts to revive him.

One expert witness concluded that Bill would have survived if appropriate resuscitative measures had been taken while another expert witness, opined that he had already gone into cardiac arrest and that oxygen would have made no difference. The Court found that Smith and McCrea's failure to administer CPR with oxygen was unreasonable and contributed to Bill's fatality.

So what about the liability waiver that was signed by each of the divers? The Court found that both Smith and McCrea failed by providing inadequate dive briefings, not having proper emergency procedures in place, and by not working together to administer CPR along with oxygen Bill. Moreover, the circumstances that led to Bill's death, including entering the lava tube, surge, breaking waves, and the depth change, presented a greater risk than the inherent risks typically encountered in scuba diving, which the defendants did not adequately warn about. Accordingly, implied assumption of risk by Bill would not apply, even under Hawaii law.

As to the waiver Bill had signed, the Court concluded that the Release documents signed by him and his wife that purported to waive negligence claims against Smith, HSS, and McCrea were unenforceable as a matter of admiralty law.

The total amount for damages awarded by the US District Court, D. Hawaii on August 17th 2016 to Bill's family was close to US$1.5 million.

Post Script from Dennis McCrea.

"I was the Captain (and EFR Instructor) that used CPR. This wasn't a "diving accident", but resulted because of diver panic. 5 minutes into the dive he surfaced in 15 feet of water and neglected to inflate his BC and had his regulator out of his mouth. He swallowed water and sank, and cause of death was drowning and cardiac failure due to ingestion of salt water. It was a tragedy.

The way the lawsuit was filed made me liable since it was a summary judgement against all parties. My attorney suggested after the fact it would have been wiser to be tried separately. The Plaintiffs Attorney told me during video deposition that I wouldn't have been sued if I didn't have insurance. The law would have protected me under the Good Samaritan Law if I wasn't being paid."

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