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January 2016    Download the Entire Issue (PDF) Available to the Public Vol. 42, No. 1   RSS Feed for Undercurrent Issues
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Judge Rules That a Liability Waiver Doesnít Cover Snorkeling

from the January, 2016 issue of Undercurrent   Subscribe Now

A federal judge recently ruled that a signed liability waiver doesn't necessarily bar a woman from suing for negligence after her husband died on a Maui snorkeling excursion.

Mark Strickert, 50, of Austin, TX, died in 2014 when he was unable to return to captain Charley Neal's boat during a fast-moving storm at Molokini Crater (we wrote about the incident in our September 2014 issue). Strickert was snorkeling with his wife, plaintiff Mary Strickert, and their two children. Six scuba divers and six snorkelers were in the water for 30 minutes when, as Neal wrote in a Facebook post after the incident, "A freak storm rolled in and hit like a wall, 40 to 60 m.p.h. winds, rain, and eight- to 12-foot breaking waves."

Mary Strickert filed a wrongful death suit, claiming gross negligence against Neal, Molokini Divers, Nealco International (doing business as Scuba Shack) and Neal's vessel, Double Scoop. The defendants tried to have the suit tossed, but last month, U.S. District Judge Derrick Watson declined to dismiss the suit, finding triable issues of fact in both of Mary Strickert's claims. Watson ruled that the release Mark Strickert signed, a PADI "Discover Scuba Diving Participant Statement," applied to scuba diving only, not the snorkeling Mark Strickert was doing at the time of the storm.

As to the gross negligence claim, Watson found that triable issues as to whether Neal's conduct during the storm amounted to gross negligence warrant continuing with the proceedings. "Allegations that Neal was aware that Mr. Strickert was visibly in distress in the open ocean, and that, despite the plaintiff's repeated pleas to Neal to assist her husband, Neal, for at least several minutes, stood and 'did nothing' to assist Mr. Strickert, suggest an 'indifference to a present legal duty and utter forgetfulness of legal obligations so far as other persons may be affected.'"

Watson also wrote, "A jury could reasonably conclude that Neal's decision to proceed with the excursion on July 20, 2014, despite the National Weather Service announcements, and his failure to immediately respond to the snorkelers, including the decedent, who were in visible distress, displayed such a gross want of care and regard for the rights of others as to justify the presumption of willfulness and wantonness."

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