Yes, the Dive Gear Caused His Death

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