United States District Court, D. Hawaii
SANDRA LEE HAMBROOK, individually, as Personal Representative of the Estate of William Joseph Savage, deceased, and as Personal Representative for the benefit of Chelsea Savage and Nicolas Savage, Plaintiff,
JAY J. SMITH; DENNIS A. McCREA; HAWAIIAN SCUBA SHACK S-22840; PADI AMERICAS, INC. and PADI WORLDWIDE CORPORATION, both dba Professional Association of Diving Instructors, Defendants.
ORDER GRANTING DEFENDANT PADI’S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DENYING PLAINTIFF’S COUNTER-MOTION FOR PARTIAL SUMMARY JUDGMENT
Alan C. Kay W Senior United States District Judge
For the following reasons, the Court hereby GRANTS Defendant PADI Americas, Inc. and PADI Worldwide Corporation, both dba Professional Association of Diving Instructors’ Motion for Partial Summary Judgment (Doc. No. 59, ) and DENIES Plaintiff’s Counter-Motion for Partial Summary Judgment against the PADI defendants. (Doc. No. 99). The Court grants judgment in the PADI Defendants’ favor as to Counts I, III, and IV of the First Amended Complaint.
This is an admiralty case arising out of a diving accident that occurred on April 11, 2012. On that date, Plaintiff Sandra Lee Hambrook, her husband William Joseph Savage, and their children Chelsea Savage and Nicolas Savage went on a recreational scuba diving excursion departing from Honokohau Harbor in Kona, Hawaii. (PADI CSF ¶ 1; Doc. No. 89 (First Amended Compl.) ¶¶ 9-12.) During the excursion, William Savage died by drowning. (PADI CSF ¶ 2; Pl.’s CSF ¶ 2.)
Defendant Jay J. Smith was the dive guide on the scuba excursion, and Defendant Dennis McCrea was a co-Captain on the dive vessel, motor vessel HA-1639-CP. Defendants Smith and McCrea were both members of the Professional Association of Diving Instructors, and were certified PADI divemasters. (PADI CSF ¶ 9, Hornsby Decl. ¶ 6; Pl.’s CSF ¶ 9, Ex. E (Smith Depo.) at 35-37.) Defendant Smith has been a professional dive guide on the Big Island since 1997. (PADI Reply CSF, Ex. 2 (Smith Depo.) at 19.) Defendant PADI Worldwide Corporation is the parent corporation of PADI America, Inc., which owns the name Professional Association of Diving Instructors (Defendants PADI Worldwide and PADI America are collectively referred to herein as “PADI”). (PADI CSF, ¶ 4.) Defendants Smith and McCrea ran their scuba excursions out of Defendant Hawaiian Scuba Shack S-22840 (“HSS”), a Hawaii corporation owned and operated by Defendant Smith. HSS was an approved PADI Dive Center at the time of the incident. (PAD CSF ¶ 10, Hornsby Decl. ¶ 6.)
PADI is a dive training organization and an association for diving instructors and dive centers that develops and designs training courses and related educational materials for recreational scuba diving. (PADI CSF ¶ 7; Pl.’s CSF ¶ 7.) To become a PADI member, an individual must agree to abide by PADI training standards, agree to be subjected to PADI’s quality assurance review, sign the PADI Membership Agreement, and pay PADI an annual membership fee. (Id.) In return, PADI members are entitled to purchase PADI course materials for resale to their customers, and to use the PADI logos and trademarks to market their services to the public. (PADI CSF, ¶ 8; Pl.’s CSF ¶ 8.) Defendant Smith became an individual PADI member in 1999 and was a member at the time of the accident that gave rise to this litigation. (PADI CSF ¶ 9, Hornsby Decl. ¶ 6; Pl.’s CSF ¶ 9, Ex. E (Smith Depo.) at 35-37.) HSS was approved as a PADI Dive Center member on February 21, 2012. (PADI CSF ¶ 10; Pl.’s CSF ¶ 10.)
At the time of the accident at issue, Plaintiff and her husband and children were on a two-week vacation in Kona on the Big Island of Hawaii. (Pl.’s CSF, Ex. D (Hambrook Depo.) at 83.) Plaintiff, Mr. Savage, and Nicolas Savage had all previously been PADI certified as open water scuba divers in 2010. (PADI Reply CSF, Ex. 3.) Plaintiff testified in her deposition that she and her husband selected HSS for their recreational diving during their vacation in Hawaii because it was a PADI certified shop, and their previous dive instructors had recommended that they select a PADI Dive Shop. (Pl.’s CSF, Ex. D (Hambrook Depo.) at 84-85; Hambrook Decl. ¶¶ 2-3.)
On April 10, 2012, Mr. Savage and Nicolas went to HSS and arranged to go on a two-dive trip with Defendant Smith. (PADI Reply CSF, Ex. 1 (Hambrook Depo.) at 104-05.) Plaintiff and Chelsea did not join them on the dive on that day because Plaintiff had a cold. (Id. at 106-07.) Plaintiff testified in her deposition that Mr. Savage told her that the dives had been “uninteresting” and that he had had some “anxiety” about regulating his breathing, but that Mr. Smith had “spent some time with him helping him” and that “he was fine after that.” (Id. at 112.) The two dives were otherwise uneventful and Mr. Savage did not raise any concerns about Mr. Smith or anyone else from HSS. (Id. at 113.)
The following day, April 11, 2012, Plaintiff and her family returned to HSS for the dive excursion at issue in the instant case. Plaintiff stated during her deposition that, when arranging for the dive excursion, she and her husband told Mr. Smith that they were “amateur divers” without much experience, and that they wanted to do supervised, safe, easy dives. (Pl.’s CSF, Ex. D (Hambrook Depo.) at 87-88.) Prior to embarking on the dive excursion, Plaintiff, Mr. Savage, and their two children each executed a document titled “Boat Travel and Scuba Diving Voluntary Release, Waiver, and Assumption of the Risk.” (PADI CSF, Exs. E-H (collectively, the releases are referred to as the “Release”).) Plaintiff, her husband, and Nicolas had previously signed similar waivers when taking diving courses in Calgary and Maui. (PADI Reply CSF, Exs. 3 & 4.)
On April 11, 2012, Defendant Smith took the family on a dive excursion to a dive site known as “Skull Cave/Suck ‘Em Up.” (PADI Reply CSF, Ex. 1 (Hambrook Depo.) at 154-55.) Mr. Smith stated during his deposition that he believed this location was appropriate based on the weather and water conditions at the time. (Id., Ex. 2 (Smith Depo.) at 176-78.) During the dive on April 11, a somewhat larger wave set came through where Mr. Smith and Mr. Savage were diving, and Mr. Smith saw Mr. Savage pass over him with a wave. (Id. at 252.) Mr. Smith testified that he then surfaced to try to assist Mr. Savage, but Mr. Savage was out of reach by that point. (Id. at 253.) At this time, Plaintiff and Nicolas were already swimming back to the boat (Chelsea did not dive and remained on the boat during the entire excursion). (Id.)
Plaintiff asserts that Mr. Savage was swept onto some rocks at the shoreline and lost consciousness; however, the autopsy revealed that there were no physical injuries to Mr. Savage other than a small, 1-cm laceration on the back of his head. (PADI Reply CSF, Ex. 5.) Mr. Smith opined that Mr. Savage drowned because he stopped using his regulator to breath air from his tank. (Id., Ex. 2 (Smith Depo.) at 251.) What is clear is that Mr. Savage somehow lost consciousness, after which Mr. Smith brought him back to the vessel, where his wife and children were waiting, and Defendant McCrea performed CPR to no avail. Mr. Savage died of salt water drowning. (Id.; PADI Reply CSF, Ex. 5.) Plaintiff brought the instant action thereafter, asserting, inter alia, that Mr. Smith and Mr. McCrea were negligent in their selection of the dive location, their supervision of the dive, and in their resuscitation efforts.
On March 14, 2014, Plaintiff Sandra Lee Hambrook filed her original Verified Complaint on behalf of herself, and as personal representative of the Estate of William J. Savage, and as personal representative for the benefit of Chelsea and Nicolas Savage, against Defendant Smith, HSS, and PADI, in personam, and the vessel, in rem. (Doc. No. 1.) Defendant PADI filed the instant Motion for Partial Summary Judgment on Counts II and III of Plaintiff’s Complaint, along with a concise statement of facts and supporting exhibits, on February 18, 2015. (Doc. Nos. 59 & 60.) Thereafter, Plaintiff voluntarily dismissed her claims against the vessel in rem, and was granted permission to file an amended complaint.
Plaintiff filed her First Amended Complaint on April 7, 2015 against Defendants Smith, McCrea, HSS, and PADI Worldwide Corporation and PADI Americas, Inc., both dba Professional Association of Diving Instructors. (Doc. No. 89 (“FAC”).) In the First Amended Complaint, Plaintiff brings the following claims: (1) negligence as against all defendants (Count I); (2) gross negligence as against all defendants (Count II); (3) vicarious liability as against Defendant PADI for the acts of the other defendants on a theory of apparent agency and agency by estoppel (Count III); and vicarious liability as against Defendant PADI on a theory of maritime joint venture (Count IV).
On April 17, 2015, pursuant to a stipulation between the parties, Defendant PADI filed a supplemental memorandum in support of its Motion for Partial Summary Judgment, explaining that its motion was still applicable notwithstanding the filing of the First Amended Complaint. (Doc. No. 97.) On May 5, 2015, Plaintiff filed her Memorandum in Opposition and Counter-Motion for Partial Summary Judgment, along with a concise statement of facts and supporting exhibits. (Doc. No. 99 & 100.) On the same day, Defendants Jay J. Smith and Hawaiian Scuba Shack filed a statement of no position regarding the motion. (Doc. No. 102.) PADI filed its Reply in Support of its Motion for Partial Summary Judgment and in Opposition to Plaintiff’s Counter-Motion, along with a concise statement of facts and exhibits, on May 12, 2015. (Doc. Nos. 107 & 108.) Plaintiff filed her reply in support of the counter-motion on May 19, 2015. (Doc. No. 113.) A hearing on the motions was held on May 29, 2015.
Summary judgment is appropriate when a “movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The central issue is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52 (1986).
The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If that burden has been met, the nonmoving party must then come forward and establish the specific material facts in dispute to survive summary judgment. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 588 (1986). The Court must draw all reasonable inferences in favor of the nonmoving party. Id. at 587.
In supporting a factual position, a party must “cit[e] to particular parts of materials in the record . . . or show that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 585. “[T]he requirement is that there be no genuine issue of material fact . . . . Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 247–48 (emphasis in original). Also, “[t]he mere existence of a scintilla of evidence in support of the non-moving party’s position is not sufficient” to defeat summary judgment. Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). Likewise, the nonmoving party “cannot defeat summary judgment with allegations in the complaint, or with unsupported conjecture or conclusory statements.” Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1112 (9th Cir. 2003).
In its motion, PADI seeks summary judgment as to the vicarious liability claims against it (Counts II and III of Plaintiff’s original Complaint). In its supplemental memorandum in support of the motion, PADI appears to assert that judgment should also be entered in its favor as to the negligence claim Plaintiff added in the First Amended Complaint (Count I of the First Amended Complaint). Plaintiff asserts that she is entitled to partial summary judgment as to the enforceability of the Release signed prior to the scuba expedition, and that questions of fact preclude summary judgment as to her remaining claims against PADI. Because PADI asserts that the liability releases signed by ...