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Hambrook v. Smith

United States District Court, D. Hawaii

August 17, 2016

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,
v.
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 DECISION

          Alan C. Kay Sr. United States District Judge

         SYNOPSIS

         This is 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”).[1] 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.

         On 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.[2][3]

         On August 1, 2016, the Court issued its Order Regarding Motions in Limine. ECF No. 364.

         For the 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.

         A 12-day bench trial was commenced on June 21, 2016, and completed on July 8, 2016.[4] 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.

         Table of Contents

         SYNOPSIS 1

         FINDINGS OF FACT 8

         I. The Parties 8

         A. Plaintiff 8

         B. Smith/HSS 8

         C. McCrea 8

         D. PADI 9

         II. The Family’s Scuba Diving Training 10

         III. Selection of Smith/HSS and April 10, 2012 Dives 13

         IV. The Incident Dive - April 11, 2012 14

         A. Selection of Dive Site 16

         B. Assessment of Environmental Conditions 18

         C. Dive Plan 20

         D. Dive Briefing 25

         E. Execution of Dive Plan 29

         F. Recovery and Tow to Boat 41

         G. Use of Oxygen, CPR, & Emergency Action Plan 46

         V. Findings Related to Claims Against PADI 56

         VI. Pain and Suffering, Witnessing the Incident, Family Life, and Earning Capacity 59

         CONCLUSIONS OF LAW 65

         I. Jurisdiction and Venue 65

         II. Applicable Law 67

         III. Assumption of Risk, Waiver, and Releases 71

         IV. Negligence Claims 83

         V. Negligence Claims Against Smith/HSS 86

         A. Selection of Dive Site 86

         B. Assessment of Environmental Conditions 87

         C. Dive Plan 88 D. Dive Briefing 89

         E. Execution of Dive Plan 91

         F. Recovery and Tow to Boat 92

         G. Use of Oxygen, CPR, & Emergency Action Plan 94

         H. HSS Liability 96

         VI. Negligence Claims Against McCrea 96

         A. Dive Briefing 96

         B. Use of Oxygen, CPR, & Emergency Procedures 98

         VII. Gross Negligence Claims Against Smith/HSS and McCrea 100

         VIII. Claims Against PADI 101

         IX. Comparative Fault and Counterclaim 107

         X. Damages 112 A. Pre-Death Pain and Suffering 112

         B. Loss of Support 114 C. Loss of Services 117

         D. Loss of Society 121

         E. Emotional Distress 123

         F. Hedonic Damages 125

         G. Punitive Damages 127

         H. Prejudgment Interest 128

         XI. Calculation of Damages 130

         XII. Joint and Several Liability 132

         DECISION 133

         FINDINGS OF FACT

         I. The Parties

         A. Plaintiff

         1. 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. 8-59, 8-68.

         B. Smith/HSS

         2. 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.

         C. McCrea

         3. 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.

         D. PADI

         4. PADI 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 information.

         II. The Family’s Scuba Diving Training

         5. On 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.

         6. They 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.

         7. 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.

         8. Engel recommended that for future scuba diving, the family should dive with PADI professional dive supervisors for their safety. Hambrook Trial Tr. 80-81.

         9. 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 area).

         10. 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).

         11. 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. 33-36).

         12. In 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.

         13. 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).

         14. 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.

         15. 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.

         16. In 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.

         17. 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.

         III. Selection of Smith/HSS and April 10, 2012 Dives

         18. 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.

         19. 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. 79-80).

         20. 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.

         21. Hambrook mentioned to Smith that she was interested in seeing lava tubes under water. Hambrook Trial Tr. 8-86; Smith Trial Tr. 1-92.

         22. 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.

         23. 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.

         IV. The Incident Dive - April 11, 2012

         24. The 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.

         25. 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.

         26. 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.

         27. 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.

         A. Selection of Dive Site

         28. 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.

         29. The 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, Skull Cavern.

         30. Smith testified that he chose the dive site because one of the divers asked to see lava tubes under water. Smith Trial Tr. 1-92.

         31. 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 9-39.

         32. 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.

         B. Assessment of Environmental Conditions

         33. 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).

         34. 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.

         35. 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.

         36. 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.

         37. 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.

         C. Dive Plan

         38. 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 Cavern.

         39. 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.

         40. 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 Tr. 2-120.

         41. An 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.

         42. The 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.

         43. 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.

         44. 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).

         45. The 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.

         46. 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.

         47. 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.

         D. Dive Briefing

         48. 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.

         49. 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.

         50. 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.

         51. 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).

         52. 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.

         53. 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).

         54. 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.

         55. 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.

         56. 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. 10-173.

         57. The 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.

         58. 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.

         59. The 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.

         E. Execution of Dive Plan

         60. 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.

         61. 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.; ...


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