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."