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 ACK-KJM 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. Total Award Total Award Total Award Total Award Total Award Total Damages $2, 201, 974.41
FINDINGS OF FACT, CONCLUSIONS OF LAW, AND
C. Kay Sr. United States District Judge
an admiralty case brought by Plaintiff Sandra Hambrook
(“Hambrook”), individually, as Personal
Representative of the Estate of William Joseph Savage,
deceased, and as Personal Representative for the benefit of
her children, Chelsea Savage and Nicolas Savage,
(“Plaintiff”), arising out of a tragic diving
accident resulting in the death of Hambrook’s First
Amended Complaint on April 7, 2015 against Defendants Jay
Smith (“Smith”), Dennis McCrea
(“McCrea”), Hawaii Scuba Shack S-22840
(“HSS”), PADI Worldwide Corporation and PADI
Americas, Inc., both dba Professional Association of Dive
Instructors, (collectively, “PADI”) (all,
collectively “Defendants”). First Am. Compl.
(“FAC”), ECF No. 89. On June 2, 2015, the Court
granted PADI’s Motion for Partial Summary Judgment as
to Plaintiff’s count for negligence against PADI and as
to two vicarious liability claims raised against PADI. Order
Granting Defendant PADI’s Motion for Partial Summary
Judgment and Denying Plaintiff’s Counter-Motion for
Partial Summary Judgment (“Summary Judgment
Order”), ECF No. 119. The claims remaining in
Plaintiff’s First Amended Complaint are (1) negligence
as against Smith, HSS, and McCrea; and (2) gross negligence
against all defendants.
December 22, 2015 and December 23, 2015, respectively,
Defendant McCrea and Defendants Smith and HSS filed
counterclaims against Plaintiff Sandra Lee Hambrook,
individually, for equitable subrogation, contribution, and or
indemnity. ECF Nos. 165-1, 166-1.
August 1, 2016, the Court issued its Order Regarding Motions
in Limine. ECF No. 364.
reasons set forth herein, the Court finds and concludes that
Smith/HSS was negligent with respect to the creation and
execution of the dive plan, failure to give an adequate dive
briefing, failure to use oxygen in conjunction with CPR
together with McCrea to resuscitate Bill, and failure to have
in place and implement an Emergency Action Plan. The Court
additionally finds and concludes that McCrea was negligent in
his failure to give an adequate dive briefing, failure to use
oxygen in conjunction with CPR together with Smith to
resuscitate Bill, and failure to inquire about emergency
action procedures. The Court finds that Bill was twenty
percent contributorily negligent insofar as he entered the
overhead environment at Skull Cavern contrary to instructions
he did not have the necessary training. Thus, for the reasons
discussed herein and set forth below, the Court finds that
judgment in favor of Plaintiff and jointly and severally
against Smith, HSS, and McCrea is appropriate in the total
amount of $2, 201, 974.41, as set forth in more detail in the
Court’s Decision. Because the Court finds and concludes
that Hambrook was not contributorily negligent, judgment in
favor of Plaintiff is also appropriate with respect to the
remaining counterclaims. Finally, the Court finds and
concludes that Plaintiff failed to prove her claims against
PADI. Accordingly, judgment in favor of PADI is appropriate
for Plaintiff’s claims against PADI.
12-day bench trial was commenced on June 21, 2016, and
completed on July 8, 2016. Having heard and weighed all the evidence
and testimony adduced at trial, having observed the demeanor
of the witnesses and evaluated their credibility and candor,
having heard the arguments of counsel and considered the
memoranda submitted, and pursuant to Federal Rule of Civil
Procedure 52(a)(1), the Court makes the following findings of
fact and conclusions of law. Where appropriate, findings
shall operate as conclusions of law, and conclusions of law
shall operate as findings of fact.
OF FACT 8
Family’s Scuba Diving Training 10
Selection of Smith/HSS and April 10, 2012 Dives 13
Incident Dive - April 11, 2012 14
Selection of Dive Site 16
Assessment of Environmental Conditions 18
Execution of Dive Plan 29
Recovery and Tow to Boat 41
of Oxygen, CPR, & Emergency Action Plan 46
Findings Related to Claims Against PADI 56
Pain and Suffering, Witnessing the Incident, Family Life, and
Earning Capacity 59
OF LAW 65
Jurisdiction and Venue 65
Applicable Law 67
Assumption of Risk, Waiver, and Releases 71
Negligence Claims 83
Negligence Claims Against Smith/HSS 86
Selection of Dive Site 86
Assessment of Environmental Conditions 87
Plan 88 D. Dive Briefing 89
Execution of Dive Plan 91
Recovery and Tow to Boat 92
of Oxygen, CPR, & Emergency Action Plan 94
Negligence Claims Against McCrea 96
of Oxygen, CPR, & Emergency Procedures 98
Gross Negligence Claims Against Smith/HSS and McCrea 100
Claims Against PADI 101
Comparative Fault and Counterclaim 107
Damages 112 A. Pre-Death Pain and Suffering 112
of Support 114 C. Loss of Services 117
of Society 121
Emotional Distress 123
Hedonic Damages 125
Punitive Damages 127
Prejudgment Interest 128
Calculation of Damages 130
Joint and Several Liability 132
Plaintiff Hambrook is a Canadian citizen from the city of
Calgary, in Alberta province. Hambrook Trial Tr. 8-59.
Hambrook and Bill were married in Canada on September 4,
1993. Id. 8-66. Their daughter Chelsea was born in
1994 and their son Nicolas was born in 1998. Id.
8-68. At the time of the incident, Hambrook was 50, Bill was
49, Chelsea was 17, and Nicolas was 13. Hambrook Trial Tr.
Smith is the owner and sole proprietor of Hawaiian Scuba
Shack, a scuba diving company in Kailua-Kona in Hawaii. Smith
Trial Tr. 1-59-61. Smith and HSS own an unnamed 28-foot
vessel that was used during the dive incident at issue. See
Id. 1-71. Smith became a certified diver in 1978, a
PADI Open Water Scuba Instructor in 1999, and a Master Scuba
Diver Trainer/Instructor in 2006. Id. 1-59-60. Prior
to 2012, Smith had trained approximately 300 divers.
Id. 1-61. Smith obtained a Coast Guard License in
1984 and he still holds the license. Id.
McCrea first became certified in open water scuba diving in
1981 or 1982 through the National Association of Underwater
Instructors (“NAUI”). McCrea Trial Tr. 3-32.
McCrea received a rescue diver certification from NAUI in
1985 or 1986 and became a NAUI instructor in 1988.
Id. 3-33. In 1990, McCrea became a PADI certified
Open Water Scuba Instructor. Id. 3-35; Ex. 269. He
later became a PADI certified Master Scuba Diver Trainer in
2005 and a certified Emergency First Responder instructor in
2007. Id. 3-38-39; Ex. 267; Ex. 268.
is a world leader in scuba diving training. PADI teaches
scuba diving training courses, provides certifications for
various different areas of scuba diving, and publishes
training manuals and other documents related to scuba diving.
PADI holds Member Forums for dive professionals in various
regions, including in Kona, to provide information about,
among other things, changes to standards. Hornsby Trial Tr.
8-40. Emergency First Response Corporation
(“EFR”) is a wholly owned subsidiary of PADI
Americas, Inc. Hornsby Trial Tr. 7-34, 7-41. EFR provides
first aid and CPR training to the public. Ex. 182 (Hornsby
Dep. Tr. 51). EFR publishes a quarterly publication called
“The Responder” which includes updates to its
member instructors regarding dive standards as well as other
The Family’s Scuba Diving Training
the weekend of January 29-31, 2010, Bill, Hambrook, and
Nicolas received beginner’s recreational scuba diving
training in a classroom and pool in Calgary. Ex. 180 (Engel
Dep. Tr. 24-25); Hambrook Trial Tr. 8-78.
were taught basic scuba skills in the PADI Open Water Scuba
Diver training course by PADI Instructor Ronald Engel
(“Engel”), including buoyancy control and
regulator recovery. Ex. 180 (Engel Dep. Tr. 16); Hambrook
Trial Tr. 8-78-79.
During the family’s training, they were provided with
PADI’s Open Water Dive Manual. Ex. 11. The manual
instructs on how to establish positive and negative buoyancy,
how to maintain neutral buoyancy, and how to use one’s
Buoyancy Control Device or Buoyancy Compensator Device
(“BCD”) to float at the surface of the ocean
until assistance or rescue arrives in an emergency situation.
Ex. 11 (Open Water Diver Manual), at 13-14, 154-55.
Engel recommended that for future scuba diving, the family
should dive with PADI professional dive supervisors for their
safety. Hambrook Trial Tr. 80-81.
Engel’s recommendation accords with the PADI Open Water
Manual used by Engel in the family’s Calgary classroom
and pool training. Ex. 11 (Open Water Diver Manual), at 235
(recommending PADI Discover Local Diving orientation in a new
PADI encourages its instructors to tell its Open Water
students to seek a local orientation when diving in a new
area after they become certified divers. Ex. 182 (Hornsby
Dep. Tr. 102).
After the pool training, the PADI Open Water course requires
four training dives with a PADI Instructor in open water
outside of a swimming pool. Ex. 183 (DiBiasio Dep. Tr.
February 2010, on Maui, Bill, Hambrook, and Nicolas completed
their four open water training dives with the “Maui
Dreams” dive shop under the instruction of PADI
Instructor Paul DiBiasio (“DiBiasio”).
Id. 33-36; Hambrook Trial Tr. 8-81.
Although there was indication in the family’s divelogs
that they experienced some waves and surge during these
training dives, both DiBiasio and Hambrook testified that the
dives were conducted in mild and calm ocean conditions
without significant waves or surge. Exs. 1-3; Hambrook Trial
Tr. 8-81; Ex. 183 (DiBiasio Dep. Tr. 48-50, 63-66).
After completion of the four open water training dives,
DiBiasio certified Hambrook and Bill as PADI Open Water Scuba
Divers, and Nicolas as a PADI Junior Open Water Scuba Diver.
Ex. 411 (Maui Dreams Dive Company Business Records), at 5,
12, 25. A Junior Open Water certification is given to
children under 15 years old. Weber Trial Tr. 5-59. Junior
divers are restricted to diving at a maximum depth of 40 feet
and are required to dive with a certified PADI professional
or a parent. Id. 5-59-60. There are also
restrictions regarding the size of the dive group for junior
divers. Id. 5-60.
Before leaving Maui, Bill, Hambrook, and Nicolas booked a
boat dive excursion with Maui Dreams in which Bill and
Hambrook participated in one scuba dive each as newly
certified divers, and Nicolas did two, diving with each of
his parents separately. Hambrook Trial Tr. 8-82. Both of the
dives were conducted in calm ocean conditions. Id.
2012, the family planned a vacation to Kona during which
Bill, Hambrook, and Nicolas hoped to scuba dive and Chelsea
hoped to snorkel. Hambrook Trial Tr. 8-82-83.
Because they had not done any diving since their 2010 Maui
trip, before they left Calgary, they took a one-day PADI
“refresher” course recommended by Engel in their
initial training. Hambrook Trial Tr. 8-83.
Selection of Smith/HSS and April 10, 2012 Dives
Once they arrived in Kona, Bill and Hambrook looked for a
PADI dive shop where they could go scuba diving under the
supervision of a PADI professional and found Smith and HSS.
Hambrook Trial Tr. 8-84-86.
PADI standards required that all recreational diving and
snorkeling tours offered by HSS be supervised by a certified
PADI divemaster or Instructor. Ex. 182 (Hornsby Dep. Tr.
Bill and Hambrook told Smith that they were new divers with
limited experience, informed him that their son Nicolas, 13
years old at the time, was certified only as a PADI Junior
Open Water Scuba Diver, and that they wanted easy, safe, and
supervised diving. Hambrook Trial Tr. 8-86.
Hambrook mentioned to Smith that she was interested in seeing
lava tubes under water. Hambrook Trial Tr. 8-86; Smith Trial
Bill and Hambrook signed boat travel and scuba releases of
liability and assumption of risk in favor of all defendants
for themselves and their children. Smith Trial Tr. 1-64; Exs.
208-211. This was the third time they had signed similar
releases and assumptions of risk. Hambrook Trial Tr.
9-150-161. They previously signed them in favor of their
Calgary scuba instructors and again in favor of their Maui
scuba instructor in 2010 when they took their Open Water
diver courses. Id.; Ex. 224-226; Ex. 232.
Bill and Nicolas went on two dives with Smith on April 10,
2012. Hambrook Trial Tr. 9-163. Both dives were at the Garden
Eel cove in Kona, Hawaii. Smith Trial Tr. 1-66-67. Their
first dive was between 5:00 p.m. and 6:15 p.m. Id.
1-67. The second dive was a night dive to observe Manta Rays
under water. Id. 1-76.
The Incident Dive - April 11, 2012
planned second day of diving was April 11, 2012. Smith Trial
Tr. 1-66. Bill, Hambrook, Nicolas, and Chelsea boarded the
HSS dive boat at Honokohau Harbor in Kona shortly after 8:30
a.m. Hambrook Trial Tr. 8-88; Smith Trial Tr. 1-91-92.
Chelsea was aboard to spend time on the boat with her family
and snorkel. Chelsea Trial Tr. 5-186-187. On the day of the
incident dive, Bill was wearing his own fins, mask, and
snorkel, and was using the same BCD and regulator that had
been provided to him by Smith/HSS on April 10, 2012. Smith
Trial Tr. 1-71, 1-81. Bill’s scuba air tank was
supplied by Smith. Id. 1-81.
Smith hired McCrea to assist on the day of the dive. Ex. 179
(McCrea Dep. Tr. 27, 29). McCrea served as captain of the
vessel while Smith and the other divers were in the water, as
required by the United States Coast Guard, and his
responsibilities included assisting to load gear onto the
boat, helping Smith launch the boat, mooring the boat, and
helping to put the divers into the water. Id. 29.
McCrea testified that he was an independent contractor for
Smith, but noted that while serving as a captain on the
vessel he was under Smith’s control. Id. 27,
29-30. McCrea additionally agreed that while working for
Smith, he accepted the fact that Smith “would tell
[him] what to do.” Id. 30.
McCrea had only worked with Smith aboard the HSS dive boat
three to four times per year, over a three to four year
period. McCrea Trial Tr. 3-107.
Smith testified that he had not experienced a previous scuba
diving incident as a divemaster, dive guide, or boat captain.
Smith Trial Tr. 2-20. There was no evidence that McCrea had
experienced a prior incident related to scuba diving.
Selection of Dive Site
Smith chose a dive site called Suck ‘Em Up, Skull
Cavern, which was about a ten-minute boat ride North of
Honokohau Harbor. Smith Trial Tr. 1-92; 2-70. The State of
Hawaii establishes and maintains an underwater mooring ball
there for boats to use. Id. at 1-93-94.
site’s name comes from two adjoining eroded lava tube
formations. Ex. 57 (DVD footage of site taken by Keller
Laros). Suck ‘Em Up is a longer, tubular formation,
more closely resembling a traditional lava tube. Id.
The adjoining formation, Skull Cavern or Skull Cave, is a
generally circular formation with two side-by-side vertical
entrances facing seaward. Id. The two entrances are
also referred to as arches or eyes, as they resemble the eyes
of the skull, giving the formation its name. At Skull Cavern,
the top of the formation is open in a large circular shape
where the roof of the lava tube collapsed, creating a large
“skylight.” Ex. 90 (Laros sketch). Although the
dive site is sometimes generally referred to as Suck
‘Em Up, this case involves the adjoining structure,
Smith testified that he chose the dive site because one of
the divers asked to see lava tubes under water. Smith Trial
There was evidence presented that the dive site chosen is
generally appropriate for inexperienced certified divers. A
dive map of the area referred to as “Franko’s
Dive Map” lists “SUCK-EM-UP CAVERN” as a
“[c]ave . . . good for beginners.” Ex. 221
(Franko’s Dive Map). Plaintiff’s expert testified
that she has previously taken inexperienced certified divers
to the site and Defendants’ expert testified that the
site was commonly used for beginners. Weber Trial Tr. 5-126;
Gingo Trial Tr. 10-111-112. Defense witness Keller Laros
testified that the dive site is very popular and at least two
boats a day if not more use the dive site. Laros Trial Tr. at
Based on this evidence, the Court finds that the dive site
was commonly used by other dive professionals for
inexperienced certified divers and that it was reasonable for
Smith to conclude that the site was appropriate to the extent
the divers were going to be looking at but not entering the
arches at Skull Cavern, which would involve entering an
overhead environment. As discussed further below, Hambrook,
Bill, and Nicolas did not have training on diving in an
overhead environment, which PADI required.
Assessment of Environmental Conditions
There was ample testimony that when the boat reached the dive
site mooring the conditions were calm. On the way to the dive
site, Smith observed the wave sets “rolling in”
and did not see any waves exceeding two feet. Ex. 178 (Smith
Dep. Tr. 243). Once they arrived at the dive site, Smith
testified that he stayed on the boat for at least ten minutes
prior to the start of the dive. Id. 242-43. During
this time, McCrea jumped in the water to moor the boat and
assess the conditions. Id. While McCrea was in the
water, Smith was able to see if there was movement in the
water that affected the mooring line and while watching
McCrea swim back to the boat, Smith could see whether McCrea
was being moved by the ocean. Id. Smith could also
see the wave sets and “how stable the boat is without
rocking and bouncing.” Id. 243. When the
divers entered the water, Smith testified there were only one
to two foot waves. Id. 195. Once Smith entered the
water for the dive, the visibility under water was
approximately 75 feet. Smith Trial Tr. 2-22. Smith also noted
that the weather conditions were calm and the wind was very
mild. Ex. 178 (Smith Dep. Tr. 179).
McCrea testified that when they arrived at the mooring, Smith
decided the conditions were fine and he concurred. McCrea
Trial Tr. 3-65. McCrea then entered the water to moor the
boat. At this point, McCrea noted that visibility was clear,
the mooring ball was sticking straight up- indicating there
were no conditions adverse to diving-and there was no
current. Id. 3-65-66. McCrea also testified that the
weather was clear and that there was no wind, rain, or
clouds. Id. 3-67. He observed waves coming in at the
rocky shoreline at the dive site and estimated that the waves
were one to one-and-a-half-feet and sometimes two to
two-and-a-half-feet “but there was nothing crashing
anywhere on the shoreline.” Id. 3-112.
Nicolas testified that the conditions on the way to the dive
site were calm and nice and he did not recall any swells in
the ocean. Nicolas Trial Tr. 2-174. According to Nicolas, no
one expressed concern regarding the weather or ocean
conditions on the way to the dive site. Id.
Chelsea testified that when they arrived at the dive site she
noticed the water rising and falling and crashing over the
rocks. Chelsea Trial Tr. 5-131-132. However, she also
testified that she did not recall anyone commenting about the
ocean conditions on the way to the dive site or once they
arrived, and that the weather was clear and it was a sunny
morning. Chelsea Trial Tr. 6-93-94.
Based on this evidence, the Court finds that Smith acted
reasonably in assessing the dive conditions prior to starting
the dive. The testimony presented indicated that the weather
and ocean conditions were appropriate for diving and
Smith’s testimony that he assessed the conditions for
several minutes, with the assistance of McCrea, prior to
starting the dive was uncontroverted. Thus, the Court finds
that Smith appropriately conducted an assessment of the
environmental conditions prior to starting the incident dive.
Throughout the proceedings, Defendants have maintained the
position that there was never any intent for the divers to
enter an overhead environment, such as the arches at Skull
Cavern. See, e.g., McCrea & PADI Proposed Findings of
Fact, Conclusions of Law and Order, at 7, 29, ECF No. 282-1
(proposing findings and conclusions related to the dive not
involving entering an overhead environment); Smith Proposed
Findings of Fact, Conclusions of Law and Order, at 7, 32, ECF
No. 286 (same); McCrea & PADI Post-Trial Proposed
Findings of Fact, Conclusions of Law and Order, at 8, 41, ECF
No. 362 (same); Smith and HSS Post-Trial Proposed Findings of
Fact, Conclusions of Law and Order, at 9, 10, 47, ECF No.
363-1 (same). However, Smith testified during his deposition
and at trial that he planned to take the divers to the
entrance of Skull Cavern, settle near the bottom, assess the
skill level and competency of the divers and then based on
the conditions decide whether or not the divers should enter
Skull Cavern. Ex. 178 (Smith Dep. Tr. 228); Smith Trial Tr.
2-78. Smith repeatedly noted that the dive plan included the
possibility that the divers would enter the archways at Skull
Moreover, the Complaint and the First Amended Complaint
contained the allegation that McCrea informed the divers that
they would see two entrances to a cavern or archway and
“that they should go in the entrance on the
right.” Compl. ¶ 18, ECF No. 1; FAC ¶ 17.
Hambrook testified that she anticipated the dive would be a
bottom dive and would not involve an overhead environment.
Hambrook Trial Tr. 9-165-66. She additionally testified that
prior to the dive, McCrea informed them that they would be
entering an arch that would open to a skylight, but that she
did not expect the arch would be an overhead environment.
Id. Nicolas testified that he was told prior to
starting the dive that they were going to be entering an
opening that looked like the eye of a skull. Nicolas Trial
overhead environment is generally defined as an area where
direct vertical access to the surface is not possible. Ex.
182 (Hornsby Dep. Tr. 121). The vast majority of the
testimony indicated that the archways at Skull Cavern are
considered overhead environments, and the Court so finds
based on this evidence. Smith Trial Tr. 2-61; Weber Trial Tr.
5-64-65; Laros Trial Tr. 9-46; Gingo Trial Tr. 10-203-204.
PADI representative Al Hornsby, who had never visited the
site, testified that “if access to the surface is
available, even if it’s at a slight angle, then you
wouldn’t formally consider it an overhead environment,
” but acknowledged that determining whether something
is an overhead environment is “situational” and
would be a “hard call” in this instance. Hornsby
Trial Tr. 8-45-46.
Court notes that it finds problematic that Defendants
throughout the trial continued to insist that the dive plan
never included the possibility of entering an overhead
environment, although Smith clearly testified otherwise both
during his deposition and at trial and both the Complaint and
First Amended Complaint contained contradictory information.
According to Plaintiff’s expert Janet Weber, there are
specific hazards and risks involved with being “in
shallow, overhead areas, ” which are encountered at
Skull Cavern. Ex. 69 (Weber Report), at 6.
There was also testimony that diving in an overhead
environment requires specialized training. Defense diving
expert Glennon Gingo (“Gingo”), for example,
testified that overhead environments “require
additional training to understand how to dive in an overhead
environment situation.” Gingo Trial Tr. 10-197. Engel,
who originally trained the divers in Canada, similarly
testified that divers who do not receive specialized training
for overhead environments are not qualified to dive in an
overhead environment. Ex. 180 (Engel Dep. Tr. 200).
PADI Open Water Diver Manual also provides that diving in
overhead environments is inappropriate absent specialized
training. Ex. 11 (Open Water Diver Manual), at 139. The
Manual notes that training in open water diving prepares for
diving in open water but that once a diver loses the ability
to ascend directly to the surface the “risk and the
potential hazards go up dramatically.” Id. The
Manual further warns that one of the leading causes of death
in scuba diving is going into an overhead environment
“without the proper training and equipment.”
Id. Gingo testified that it is appropriate for a
divemaster to follow PADI training. Gingo Trial Tr. 10-196.
There was also evidence presented that surge and wave sets
can sometimes make entering Skull Cavern dangerous even for
experienced divers. Ex. 69 (Weber Report), at 8. According to
Weber, Skull Cavern is set against the shoreline in shallow
water with an entrance at 20 feet, but the rear of the cavern
under the skylight is only 8 to 10 feet. Id.
“The edge of the skylight, or top of the cavern, is the
rocky ledge of the shoreline.” Id. The
configuration of Skull Cavern, including its location on the
shoreline, allows for wave movement to create surge. Weber
Trial Tr. 5-21-22.
Hambrook, Nicolas, and Bill never received training specific
to overhead environments. They were all beginner
PADI-certified divers who had completed only between 5-8
dives each. Nicolas was a junior diver requiring additional
considerations with regards to his safety. The divers
informed Smith of their limited training and diving
experience so that Smith should have been aware that they had
not received training with respect to overhead environments.
Based on this evidence, including the hazards associated with
entering the arches at Skull Cavern, the Court finds and
concludes that Smith’s dive plan, insofar as it
included the possibility of taking the divers into the
overhead environment at Skull Cavern, was not reasonable
under the circumstances. The Court further finds that in this
respect, Smith enhanced the inherent risks and hazards
associated with the dive.
Before getting into the water, Hambrook testified that she,
Bill, and Nicolas were told by McCrea only that they were to
go down the mooring line, proceed toward shore following
Smith, that they should stay low in the water, and that they
would then “go through an archway on the right.”
Hambrook Trial Tr. 8-89-90, 9-118-120.
Nicolas testified that he was not sure who gave the dive
briefing, but the only information presented was that the
divers were going to swim around a rocky area near the shore,
go through an opening that looked like the eye of a skull,
and that they should avoid surface water and stay at depth.
Nicolas Trial Tr. 2-120, 2-173-74.
Chelsea testified that while her father was in distress
during the dive, she heard McCrea say something along the
lines of “I told them to stay away from the
rocks.” Chelsea Trial Tr. 5-132.
McCrea testified that he did not provide a dive briefing
regarding the hazards, overhead environment, or the
conditions, and he stated that it was not his job to provide
such warnings. McCrea Trial Tr. at 4-166-167. McCrea
testified that Smith was the one who gave the dive briefing,
but admitted that he had told Hambrook the name of the dive
site. Ex. 179 (McCrea Dep. Tr. 104-05); McCrea Trial Tr.
4-166. According to McCrea, prior to the dive he helped the
divers get their equipment on and checked to make sure that
the divers knew how to operate their BCDs. McCrea Trial Tr.
3-60-61. McCrea also stated that he had no awareness
regarding Bill, Hambrook, and Nicolas’s dive experience
level. Ex. 179 (McCrea Dep. Tr. 149).
Smith, in turn, testified that he gave a dive briefing prior
to the dive and that during the briefing, he informed the
divers to stay away from water movement, to stay low and
negatively buoyant, and he showed them how to use hand
signals as well as how to use their BCDs. Smith Trial Tr.
1-102-103. Smith testified that he told the divers that if
they saw white water, which may look like champagne bubbles,
they should not swim towards it. Id. 1-103.
Smith admitted that he did not give a specific warning about
the waves and surge at the dive site, including the
possibility that there would be wave sets. Ex. 178 (Smith
Dep. Tr. 248-49). Smith admitted that “wave sets”
are a foreseeable occurrence in Hawaii and that the Kona
Coast often experiences wave sets. Smith Trial Tr. 2-77; Ex.
178 (Smith Dep. Tr. 249).
According to Plaintiff’s diving expert Weber, divers at
Skull Cavern should be warned about surge, given the
possibility of surge at the dive site. Weber Trial Tr.
5-62-63. Weber testified that wave and surge action at the
dive site are foreseeable dangers that are well known to the
Kona professional diving community. Id. 5-37-38.
Weber’s expert report also noted that the divers should
have been briefed regarding the dangers “involved with
being in shallow, overhead areas, and how to minimize
potential problems.” Ex. 69 (Weber Report), at 6.
Defendants’ diving expert Gingo admitted that if a dive
plan involved going through an overhead environment, a
reasonably prudent divemaster would warn of overhead
environment entry and advise about procedures to be used when
entering an overhead environment, such as Skull Cavern. Gingo
Trial Tr. 10-201-203, 204-205. Gingo also testified that in
this case there were no warnings specifically related to an
overhead environment. Id. 10-204-205.
With respect to the waves and surge, Gingo also admitted that
the divers were not given specific warnings about the waves
and surge at the site and that a reasonably prudent
divemaster would have explained the surge conditions at this
particular dive site. Id. 10-173-174, 10-196. Gingo
noted that the divers were warned about the possibility of
champagne bubbles, but testified that it is possible to have
surge conditions without champagne bubbles. Id.
Court finds that based on the evidence, both Smith and McCrea
provided dive briefings on the day of the incident dive. The
Court credits Hambrook’s testimony insofar as she
recalled that McCrea provided some information to the divers
prior to the dive. That McCrea provided a dive briefing was
further supported by Chelsea’s recollection that she
heard McCrea say “I told them to say away from the
rocks” while her father was in distress. Chelsea Trial
Tr. 5-132. The Court also credits Smith’s testimony
that he provided a dive briefing to the divers.
Based on the evidence adduced, the Court additionally finds
that both Smith and McCrea provided inadequate dive briefings
to Bill, Hambrook, and Nicolas. The dive briefings should
have included warnings about the hazardous conditions at the
dive site including the possibility of surge and waves at the
dive site and instruction on how to navigate through an
overhead environment. The Court further finds that all of the
foregoing hazards and dangers were known to Smith and McCrea.
Court deems it reasonable to infer and therefore finds that
if Bill and Hambrook had been informed about the dangers
associated with the dive site by either Smith or McCrea, they
would have asked to go somewhere else without such dangers,
such as the two dive sites visited by Bill and Nicolas the
day before. This inference is supported by Hambrook’s
testimony that she informed Smith that the family wanted
easy, safe, and supervised diving. Hambrook Trial Tr. 8-86.
The Court additionally finds that the inadequate dive
briefings contributed to the chain of events leading to
Bill’s fatality, because he was unprepared to deal with
the hazards he encountered, as discussed further below. The
Court further finds that Smith and McCrea enhanced the
inherent risks and hazards associated with the dive through
their failure to provide adequate briefings.
Execution of Dive Plan
Given that Bill, Hambrook, and Nicolas were all three newly
certified divers, it was foreseeable and reasonable that
Smith would be required to provide close supervision during
the dive tour. Weber Trial Tr. 5-52. Weber testified that
providing close supervision means staying within ten feet of
the divers in order to be close enough to assist in the event
of a problem. Id. 5-59.
After entering the water, Bill, Hambrook, and Nicolas
descended together as a group along the mooring line.
Hambrook Trial Tr. 8-90. Smith had already gone ahead and did
not descend with Bill, Hambrook, and Nicolas. Id.
Smith then met the divers at the bottom, signaled them to
follow and proceeded to move off toward the shoreline.
Id. Bill, Hambrook, and Nicolas followed but Smith
was “way ahead of [them].” Id.;