A woman who watched in horror as her brother died while they were diving, and learned later
that his diving gear was defective, can't sue the manufacturer because she wasn't aware of the
defect at the time. So said a California state appeals court on January 10 in the matter of Fortman v.
Forvaltingsbolaget Insulan AB.
Barbara Fortman, a resident of Redlands, CA, and her brother, Robert Myers, who was visiting
from Chicago, were diving off Catalina Island in March 2009. Myers was wearing a Catalyst 360 drysuit,
which came equipped with a low-pressure hose that incorporated a small plastic flow-restriction
insert. Both the hose and the insert were manufactured by Forvaltingsbolaget Insulan AB, a Swedish
company that does business in the U.S. under the name SI Tech.
A few minutes into the dive, Myers signaled to Fortman that he wanted to ascend. Fortman put her
hand on her brother's arm when they began their ascent but she realized that, despite kicking, they
were no longer ascending. Fortman stopped kicking, and they sank to the ocean floor, where Myers
landed on his back. His eyes were wide open but he was unresponsive.
Fortman later testified that she was unsure whether Myers was still breathing. "I didn't even know
to look to see whether he's breathing," she said. "It didn't occur . . . I didn't allow myself to think that
there was really something wrong with him. I don't think he was still breathing."
She tilted his head back as they began to ascend again so that if his air flow was constricted, he
could breathe with his regulator. Myers remained unresponsive during the ascent, and halfway to the
surface, his regulator fell out of his mouth. When they reached the surface, Fortman summoned help.
Myers was taken to the hyperbaric chamber on the island, where he was pronounced dead.
Fortman testified that she initially thought Myers had a heart attack, but she learned months later
that her brother's regulator had malfunctioned. The Los Angeles County Sheriff's Department collected
Myers gear, and technicians examining the regulator's second stage found that the flow restriction insert, a black cylindrical-shaped object, did not appear on any of the product schematics. According
to the investigation report, the insert was in a location "that would appear to restrict normal airflow."
The investigators determined that the flow- restricting insert in the suit's low- pressure hose somehow
because lodged in the second stage regulator and caused the regulator to fail.
Fortman and Myers' parents filed separate suits against SI Tech. Fortman sought damages for emotional
distress, alleging that "[she] was present at the time and place of the occurances described . . .
and contemporaneously observed, witnessed and saw that he was unresponsive to her signals, and
perceived that her brother had stopped breathing and was being fatally injured by defendants' defective
and unsafe products." Her negligence claim was based on the "bystander" doctrine, first set forth in the
1968 California Supreme Court case Dillon v. Legg, in which a mother, seeing her child run over by a
negligent truck driver sues the driver for her emotional distress caused by witnessing the accident.
In the Fortman case, there was no factual dispute over what happened. Thus the defendant manufacturer
filed a motion for summary judgment, saying the only question is for the trial court to decide
whether the defendant owes a duty of care to Fortman. STI contended that Fortman couldn't establish
an awareness of the causal connection between the injury-producing event and the resulting injury.
So while Fortman may have seen her brother suffer injuries, she couldn't have perceived that he was
being injured by the company's product. In reply, Fortman said she only had to establish that she
observed the accident, not what caused the injury.
Under California law, a person who sees a close relative injured or killed because of someone else's
negligence can sue the wrongdoer for emotional distress. But the Second District Court of Appeal in
Los Angeles said such suits are allowed only if the watcher is aware of the cause of the harm when
it occurs. "Fortman witnessed the injury, but did not meaningfully comprehend that the company's
defective product caused the injury," Justice Richard Aldrich said in the 3-0 ruling that relied on a
1989 California Supreme Court ruling that set limits on suits for emotional trauma caused by witnessing
an injury: The plaintiff must be a close relative, must be at the scene of the wrongful conduct and
must be aware of the cause of the injury.
Fortman's lawyer, Roland Wrinkle, said the appeals court's decision last week was an unjustified
narrowing of the 1989 standards, and he will ask the state's high court for a hearing. SI Tech's lawyer Steven McGuire, told the San Francisco Chronicle that the ruling was consistent with the standards set
by the state's high court. He acknowledged that Fortman might find the dismissal of her lawsuit unfair
but said, "That's the way the law works sometimes."
We asked Undercurrent contributor Laurence Schnabel, Of Counsel to the Los Angeles-based law firm
Lewis Brisbois Bisgaard & Smith and a certified divemaster, for his take on the court's ruling. His view:
"In my opinion, the appeal courts that fashioned and since refined the Dillon v. Legg bystander claims,
which Fortman used as her basis, are wary of allowing too broad an application of the doctrine, and
they fear a wide Dillon application will flood already overloaded courts with more litigation.
"The court's opinion is not final, but the chances of a rehearing request, if made, being granted is
slim, and a Supreme Court grant of review even slimmer. My suspicion is that Fortman sued under
the Dillon doctrine because she was not an heir of her brother's and thus could not sue for wrongful
death. That type of suit can be filed only by the deceased's heirs at law, relatives such as parents, wife,
kids, who are closer in law than a sister, thus relegating the plaintiff sister here to a Dillon claim."
Indeed, Myers' parents have filed a wrongful death suit against SI Tech, which is now in trial in
California's Superior Court. This ruling does not affect that case.
- - Vanessa Richardson