When a Liability Waiver Doesn't Count

Three companies have agreed to pay $1.4 million to the family of a West Virginia woman who drowned while scuba diving in Hawaii. Susann Lovejoy, 42, of Huntington, WV, drowned during a dive trip in July 2003. Her family sued the dive operator, AquaZone of Honolulu, as well as Sheico PKS Inc. and Sherwood Scuba, the manufacturer and distributor of her BCD.

What divers will find important about this lawsuit is that Lovejoy had signed a PADI release that relieved the operator of responsibility, even if negligent. Hawaiian law, however, says that any firm providing scuba services “shall exercise reasonable care to ensure the safety of patrons and the public, and shall be liable for damages resulting from negligent acts or omissions of the person which cause injury.” A waiver is invalid if the injury results “from the negligence, gross negligence, or wanton act or omission of the owner or operator.”

The family claimed that the defective BCD, which she owned, coupled with negligence by AquaZone, led to Lovejoy’s death. Lovejoy had e-mailed Aqua Zone stating, “My husband and I will be a little rusty since the last time we dove it was last summer in Cozumel. We are looking to hook up with a company that can accommodate us and is flexible about working with us as novices. We prefer more individual attention and would be glad to pay extra for it rather than with the bigger operations with larger numbers of divers.” She also said that her 13-year-old daughter Kelsey and a family friend were seeking a referral for their open-water certifications. AquaZone replied, “We can probably get you a private boat for your group (no promises) ocean dives and have you get warmed up on scuba in the hotel pool before you go out.”

In fact, the PADI dive center’s website states: “AquaZone SCUBA Diving Center is . . . .the only Dive Center to offer a free SCUBA lesson in the pool to make sure you are comfortable before a dive in the ocean.”

When the Lovejoy family arrived, their reservation was not on record and the pool dive refresher was under way. Instead of a refresher or private supervision, they were grouped with four other divers, all uncertified. AquaZone owner Devon Merrifield tried to arrange a second instructor for the day trip but was unsuccessful. On the way to the dive, the survivors claimed they were not helped to assemble or test their equipment by Merrifield or by boat captain Scott Williams. At the site, Merrifield took the six uncertified divers down to the bottom first, leaving Susann Lovejoy and her husband on their own.

Some time after the couple entered the water, Captain Williams spotted Susann struggling at the surface and saw that her weight-integrated Sherwood Avid BCD was not holding air. Apparently she got to the stern ladder, but Williams looked away for just a moment. When he turned back, she was gone.

Williams grabbed a mask and jumped in the water without fins and saw Susann Lovejoy about 10 feet down, motionless. He returned to the boat and grabbed a scuba rig. Susann was on the bottom in 35 ft and Williams unsuccessfully tried to inflate her BCD with the power inflator, so he inflated his BCD and pulled her to the surface and began CPR in the water.

Then Susann’s husband surfaced and Williams asked him to get Merrifield. At some point during the process, Williams released Susann Lovejoy’s BCD. Merrifield saw it fall and testified that he tried to inflate it, without success. When he pushed the power inflator, the air came right out through the shoulder overpressure valve. He tried to adjust the valve by pulling on the cord, but that didn’t alleviate the problem. So he tied the BCD off to the mooring buoy and surfaced, learned of the emergency, and returned to the other divers to bring them back to the boat.

An expert witness, a scuba instructor who manages Hanauma Bay Nature Park, criticized AquaZone for not having another person in the water to supervise the two groups of divers. Although AquaZone was following PADI’s maximum ratio of one instructor per eight openwater divers or students, Patrick McTernan, a partner in the Honolulu law firm that represented the plaintiffs, told Undercurrent that in his firm’s experience, “Most if not all of our diving death cases have involved instructors bringing out students or resort dive customers using the maximum instructor-student/customer ratio allowed by PADI. Experience has shown time and again that this is too large a number of inexperienced people for a single instructor to monitor safely. As a result, someone dies.” In fact, he said, the bulk of fatal cases his firm has handled involved middle-aged Japanese women enrolled in resort courses.

Plaintiffs pointed out that the boat’s U.S. Coast Guard Certificate of Inspection required it to be manned by both a master and a deckhand. When Merrifield went in the water, he left Williams alone on deck. The family alleged that it was unreasonable of Williams, once he was aware that Susann Lovejoy was having problems, to take his eyes off her, even for a moment. A hyperbaric medicine physician testified that if Williams had gotten Susann Lovejoy out of the water immediately to perform CPR, she probably would have survived.

For these and other reasons, the plaintiffs claimed that AquaZone’s negligence contributed to Susann Lovejoy’s death.

PKS and Sherwood Scuba were also accused of negligence, for producing a defective product. The Avid BCD had been recalled in May 2001 because the overpressure valve could stick open, presenting a drowning hazard. Consumers were told to stop using the BCDs and return them for a free replacement. Lovejoy bought her Avid after they were recalled, but an expert witness testified that it had virtually the same defect.

The defendants questioned whether Lovejoy died of drowning or cardiac arrhythmia, a tough theory to prove, since everyone who drowns suffers an arrhythmia. However, with a true arrhythmia, death is virtually instantaneous, so the BCD keeping Lovejoy on the surface probably wouldn’t have helped her survive nor would immediate CPR or closer supervision.

The case was hotly contested in pretrial proceedings, but the defendants agreed to settle. Had Hawaiian law not invalidated the PADI waiver for negligence, gross negligence, or wanton act or omission of the owner or operator,” settlement would have been far more difficult. In the next issue, we’ll look more deeply into the waiver, the bane of sport divers, and its validity

– Larry Clinton, Jr.