After Divers Die

In our last issue, we carried the first installment of a series on the difficulties injured divers and the estates of deceased divers face when they file suit. In this issue we continue the series, which is based in large part on research conducted by Phyllis G. Coleman, Professor of Law at Nova Southeastern University in Fort Lauderdale, whose work appeared in the Journal of Maritime Law and Commerce.

Fingering the Right Defendants

Although identifying possible defendants in a diving case is rarely difficult, some defendants present special tactical challenges. For example, training organizations sometimes try to avoid liability for their instructors’ acts.

In Leno v. YMCA of San Francisco, a student died during an ocean checkout dive. The YMCA sought to escape responsibility by claiming the instructor, George Del Secco, who volunteered his services to the Y, was not its agent.

The court disagreed: “The course was advertised on the bulletin board of the Y. Leno and other students paid the Y $35-$40 for the course that was conducted at the Y pool and for which the Y supplied the tanks and regulators. Under these circumstances, any student would reasonably assume that Del Secco was the Y’s agent....The Y’s acceptance of the fee is an express act of ratification. On the completion of the course, a student received a Y certificate of competency.”

Similarly, in Torres v. NAUI, the decedent drowned during a scuba course. Claiming he had died because of negligent instruction, his family sued NAUI because it had certified the instructor. The court said the primary issue was “whether NAUI ...can be held vicariously liable for the negligence of [Roberto] Mendez, the scuba-diving instructor.” Although Mendez’s “teaching” status had briefly lapsed, the court found he was NAUI’s agent because of their mutually beneficial relationship, and it permitted the plaintiffs to proceed.

Governments often try to avoid responsibility by citing a sovereign immunity defense, but they’re not always successful. In Boyd v. the U.S. Army Corps of Engineers, Ms. Boyd sued the government after her husband, who was snorkeling in a federal park, was killed by a passing boat. The government argued it was immune, citing two separate statutes. The court disagreed. It found neither statute applicable and permitted the plaintiff to pursue her suit.

In Lasagne v. Divi Hotels, a New York resident was injured when he was hit by a motor boat while snorkeling off Aruba. When he sued the hotel, it impleaded the Aruban government. The government moved to dismiss, claiming immunity based on the Foreign Sovereign Immunities Act. The court dismissed the government but permitted the action against Divi.

When it comes to trip sponsors, courts have generally ruled that, unless they control the trip itself, they cannot be held liable for the negligent acts of third parties. In Mayer v. Cornell University, a snorkeler died during a birdwatching junket. Although the trip was sponsored by Cornell University, the tour operator, Voyager International, had planned and arranged the trip. Consequently, the court held that Cornell was not responsible for Voyager’s negligence.

Don’t Lie to Insurers

Plaintiffs in diving cases frequently sue insurers, who may seek to avoid liability by arguing that the plaintiff (or the decedent, if the plaintiff is the decedent’s estate) misrepresented a material fact and that this misrepresentation voided the policy. For example, in Equitable Life Assurance Society v. Damato, the decedent wrote “no” in response to a question on a life insurance application that asked if he had “engaged within the last year, or [had] any plan to engage in ... underwater diving . . ?” Relying on his representation, the insurance company issued a $150,000 policy.

Several months later, he died during an ocean dive. After the accident, the company discovered he had engaged in previous deep dives and had planned to continue diving. As a result, the insurance company rescinded the policy, refused to pay the decedent’s beneficiary, and attempted to return the premiums. At trial, the court allowed the insurer to rescind the policy based on “false and fraudulent representations.”

State Law Remedies

Besides remedies available under federal maritime law, damages can often be sought under state law. In Kuniz v. Windjammer “Barefoot” Cruises, Ltd., a diver died during an open-water dive determined to be “negligently conducted, wrongfully supervised, and deficiently handled.” Under the state survival statute, the court granted the plaintiff the amount the decedent “would have earned from the time of trial to the end of her life expectancy.”

Similarly, in Tancredi v. Dive Makai, parents of a diver killed during a dive “suitable only for very experienced divers because of its depth and the fact that it required several decompression stops” were permitted to recover under Hawaii’s wrongful death statute. Because the statute permitted recovery for “fair and just compensation, . . . including loss of society, companionship, comfort, consortium ... [and] ... loss of filial care or attention,” the court found each parent entitled to $125,000. The decedent was an only child and, although he did not provide financial support to either parent, “he had a normal, close, and loving relationship with his parents ... [and] maintained regular contact with them during his adult life.”

The Risk is Yours, but Perhaps Not All Yours

Defendants regularly raise defenses of assumption of the risk and contributory negligence. Assumption of the risk involves a plaintiff’s voluntary agreement to take responsibility for a known danger. Contributory negligence involves a plaintiff’s failure to exercise the appropriate level of care.

In Cassio v. Creighton University, the defendant argued it was not liable because the decedent, who had died while by himself in the college’s swimming pool, had assumed the risk of diving alone. Plaintiff claimed the university was negligent because a local ordinance required two lifeguards be present but only one lifeguard had been on duty.

The university testified that, based on the length of time decedent had been diving, he should have known the risks of both holding his breath during ascent and diving without a buddy. The court said this presented an issue of negligence rather than assumption of the risk and referred the question of whether this was contributory negligence to the jury because there was a question about the cause of death.

In a bizarre case, Hyde v. Avalon Air Transport, a snorkeler sued after being struck by a seaplane while he was lying motionless in a kelp bed. Although the pilot had looked at the water during the landing operation, he never saw the plaintiff. A warning by a passenger in the copilot’s seat that she thought she saw a man in the water came too late.

Although seaplanes had landed in the kelp beds in the past, plaintiff denied ever seeing them land in this area. The court agreed that the evidence did not support an assumption of risk because “the victim must have not only general knowledge of a danger, but must have knowledge of the particular danger—the magnitude of the risk involved.” Therefore, the court rejected the inference that because plaintiff summered in the area he must have known that seaplanes might land where this one did.

In Lyon v. Range, a highlyexperienced diver was killed when a boat ran over him. His heirs filed a wrongful death suit against the boat and owner. Although damages, including loss of services, society, companionship, and economic contribution, were awarded, they were reduced by 45% because of what the court called the diver’s “seriously flawed” dive plan.

Comparative negligence will reduce a recovery if it was a concurrent proximate cause of death. In a case against Adventure Bound Sports, three divers died after being run over by their boat during a drift dive. Because the divemaster failed to put the boat in neutral, the divers were caught in the boat’s propellers and fatally injured. Although the divemaster was held to be negligent, decedents were found to have contributed to their deaths by “forming a dangerous, three-person buddy team in which one diver was to separate from the other two.” They also failed to tell the divemaster that they anticipated equalizing problems. The court allocated two-thirds of the fault to the divemaster and the captain and one-third to decedents.

— Ben Davison