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April 2018    Download the Entire Issue (PDF) Available to the Public Vol. 44, No. 4   RSS Feed for Undercurrent Issues
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False Liability Release Answers May Have Cost a Widow Dearly

from the April, 2018 issue of Undercurrent   Subscribe Now

Frank Frost, who had been a certified diver for five years, died in December 2012 while taking a PADI Advanced Open Water course with Eco Dive Center in West Los Angeles. Before being admitted to the course, he signed a liability release, and by answering "no" to every question about his health, he indicated he was in good health. However, he failed to note that he was a smoker, had high cholesterol levels and was under medical care for Hepatitis C and cirrhosis of the liver. Had he answered the questions truthfully, he would have had to visit a physician and be cleared for the course. Instead, his wife became a plaintiff in a lawsuit over his death.

Frost became part of the AOW class that met at Redondo Beach for a night dive, where he received a predive briefing from his instructor, Daniel Rood. About 20 divers from other classes entered the water ahead of Frost's class, but there was appreciable surf, and some divers aborted their dives.

Frost made it past the surf zone, but his buddy was unable to make it through. Other divers had difficulty with the surf, and instructors leading other classes helped them out. Frost, who appeared to be in distress, was helped back to the shore, but became unconscious. When Rood returned to the shore, he saw divers administering CPR, but to no avail. Frost had drowned.

The plaintiff, Frost's wife, Maria Vilma, contended that instructor Rood should have been closely supervising her husband, but, in contrast, the defendant's expert witness stated that under PADI standards, Rood "had the option to elect indirect supervision" of his students on the AOW (advanced) course and did not have to enter the water with them. The plaintiff argued that Rood violated industry standards by violating PADI's standards for direct supervision by instructors and PADI's buddy contact standard for divers.

The court did not agree. And, because there were so many other divers in the water, the California Court of Appeals (January 2018) concluded that the conditions were safe for an advanced class of certified divers, and therefore, there was no triable issue of material fact as to the plaintiff's negligence. Had gross negligence been found, the court may have overruled the liability release Frost had signed, but the court found that Rood's errors were minor and did not qualify for gross negligence, and dismissed the case.

For the widow, however, the trauma was not over. The court ruled that she was liable for the defendant's costs. That financial blow to the widow perhaps would never have occurred had Frost come clean with his health problems. Had he visited a physician, he may have been disqualified from the training or at least seen the seriousness of his risk.

(Maria Vilma Frost v Eco Dive Center et al. -- California Court of Appeals 2nd District, 5th Division 16 Jan 2018).

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