Strickert v. Neal

Filing 71

ORDER DENYING DEFENDANTS' 51 MOTION FOR SUMMARY JUDGMENT. Signed by JUDGE DERRICK K. WATSON on 11/30/2015. (Dkt. No. 51). (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notificat ions received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I

MARY M. STRICKERT, individually,
as Personal Representative of the Estate
of Mark David Strickert, deceased, and
as Personal Representative for the
benefit of C.H.S. and C.S.S.,

CIVIL NO. 14-00513 DKW-RLP
ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT

Plaintiff,
vs.
CHARLES C. NEAL; MOLOKINI
DIVERS, INC.; NEALCO
INTERNATIONAL LLC dba Scuba
Shack in personam; and MOTOR
VESSEL DOUBLE SCOOP, O.N.
1209721, its engines, equipment, and
appurtenances, in rem,
Defendants.

ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT
This is a maritime wrongful death case arising out of a snorkeling accident
that occurred on July 20, 2014 near Molokini Crater, Maui as the decedent, Mark
Strickert, was snorkeling with his wife, Plaintiff Mary Strickert, and their two
minor children, C.H.S. and C.S.S., as customers of Defendants’ dive tour business.
Plaintiff filed this action against Defendants Charles Neal, Molokini Dive Charters,

Inc. (“MDCI”), and NEALCO International, LLC dba Scuba Shack (“NEALCO”),
alleging claims of negligence (Count I) and gross negligence (Count II).
Before the Court is Defendants’ Motion For Summary Judgment. Dkt. No.
51. Defendants argue that (1) Plaintiff’s negligence claim is barred by a waiver
that Mr. Strickert signed prior to embarking on the snorkeling tour at Molokini;
and (2) Plaintiff’s gross negligence claim fails because Plaintiff has not alleged
facts nor offered evidence establishing Defendants’ requisite degree of culpability.
Because there are genuine issues of material fact as to both claims, the Court
DENIES Defendants’ Motion for Summary Judgment.
FACTUAL BACKGROUND
I.

The Release Agreements
On the morning of July 20, 2014, the Strickerts boarded Defendants’ vessel,

the Double Scoop, at the boat harbor in Kihei, Maui in order to participate in a
diving and snorkeling excursion. Decl. of Charles Neal (“Neal Decl.”). Prior to
the excursion, Plaintiff and Mr. Strickert were provided a “PADI Discover Scuba
Diving Participant Statement,” which included a section entitled, “Liability
Release and Assumption of Risk Agreement” (the “PADI DSD Release
Agreement”), which they both signed. Neal Decl. Exhs. 1-2. The PADI DSD
Release Agreement that was signed by Mr. Strickert provides, in relevant part:

2

I (participant name) Mark Strickert hereby affirm that I am
aware that skin and scuba diving have inherent risks which may
result in serious injury or death.
....
I understand and agree that neither the dive professionals
conducting this program, Jeff Bartunek, nor the facility through
which this activity is conducted Scuba Shack, nor International
PADI, Inc., nor any of their respective employees, officers,
agents or assigns (hereinafter referred to as “Released Parties”)
may be held liable or responsible in any way for any injury
death or damages to me, my family, estate, heirs or assigns that
may occur as a result of my participation in this program or as a
result of the negligence of any party, including the Released
Parties, whether passive or active.
In consideration of being allowed to participate in this program,
I hereby personally assume all risks for any harm, injury or
damage, whether foreseen or unforeseen, that may befall me
while participating in this program, including but not limited to
the academics, confined water and/or open water activities.
I further release and hold harmless the Discover Scuba Diving
program and the Released parties from any claim or lawsuit by
me, my family, estate, heirs, or assigns arising out of my
participation in this program.
I further understand that skin diving and scuba diving are
physically strenuous activities and that I will be exerting myself
during this program and that if I am injured as a result of heart
attack, panic, hyperventilation, etc. that I expressly assume the
risk of said injuries and that I will not hold the Released Parties
responsible for the same.
I further state that I am of lawful age and legally competent to
sign this Assumption of Risk and Liability Release Agreement,
or that I have acquired the written consent of my parent or
guardian.
3

I understand that the terms herein are contractual and not a
mere recital and that I have signed the Release of my own free
act and with the knowledge that I hereby agree to waive my
legal rights. I further agree that if any provision of this
Agreement is found to be unenforceable or invalid, that
provision shall be severed from this Agreement. The remainder
of this Agreement will then be construed as though the
unenforceable provision had never been contained herein.
I (participant name), Mark Strickert, BY THIS INSTRUMENT
DO EXEMPT AND RELEASE THE DIVE
PROFESSIONALS CONDUCTING THIS ACTIVITY, THE
FACILITY THROUGH WHICH THIS ACTIVITY IS
CONDUCTED, AND INTERNATIONAL PADI, INC., AND
ALL RELATED ENTITIES AND RELEASED PARTIES AS
DEFINED ABOVE, FROM ALL LIABILITY OR
RESPONSIBILITY WHATSOEVER FOR PERSONAL
INJURY, PROPERTY DAMAGE OR WRONGFUL DEATH,
HOWEVER CAUSED, INCLUDING BUT NOT LIMITED
TO THE NEGLIGENCE OF THE RELEASED PARTIES,
WHETHER PASSIVE OR ACTIVE.
Neal Decl. Exh. 1.
In addition, Mr. Strickert signed on behalf of his son a separate form
entitled, “Liability Release for Supervision of Certified Divers and Snorkelers”
(hereinafter “Molokini Divers Release Agreement”). The Molokini Divers Release
Agreement provides, in relevant part:
This is a release of your rights to sue Molokini Divers, Inc., dba
Scuba Shack, and its owners, employees, agents and assigns for
personal injury or wrongful death that may occur during the
forthcoming dive/snorkel activity as a result of the inherent risk
associated with scuba diving and/or snorkeling or as a result of
negligence.
Neal Decl. Exh. 1 (Dkt. No. 54-1 at 4).
4

Under the first paragraph referenced above, the Molokini Divers Release
Agreement contains eleven enumerated sections and instructs participants to
“[i]nitial each of the following sections as you read them. If you do not scuba
dive, initial only those items marked by the (*) symbol.” Dkt. No. 54-1 at 4
(brackets omitted). The following five sections were marked by an asterisk and
initialed by Mr. Strickert:
2.
I am aware of the risks inherent in scuba diving and/or
snorkeling, as well as boat travel to and from the snorkel/dive
sites, and I accept these risks.
3.
I affirm that I am in good mental and physical fitness for
diving, snorkeling, and/or boat travel and that I am not under
the influence of alcohol or drugs which are contra indicatory to
scuba diving, snorkeling and/or boat travel. If I am taking
medication, I affirm that I have consulted a physician and have
approval to scuba dive, snorkel, and/or travel on a boat while
under the influence of medication. If I am a non-swimmer or
poor swimmer, I agree to wear a personal flotation device
(PFD) at all times while on board a boat or in the water. If I
refuse to wear a PFD, I will be refused passage on the boat.
....
6.
I will inspect all of my equipment prior to the activity
and will notify the above listed business and/or an individual if
any of my equipment is not working properly. I will not hold
the above listed businesses or individuals responsible for my
failure to inspect my equipment prior to scuba diving or
snorkeling.
7.
I acknowledge that I am physically fit to scuba dive,
snorkel, and/or travel on a boat and I will not hold the above
listed businesses or individuals responsible if I am injured as a
5

result of heart, lung, ear, or circulatory problems or other
illnesses that occur while scuba diving and/or snorkeling.
....
10. I also understand that on this open water diving rip [sic],
I will be at a remote site and there will not be immediate
medical care or hyperbaric care available to me and I expressly
assume the risk of diving and/or snorkeling in such a remote
location.
Dkt. No. 54-1 at 4.
The eleventh section of the release, which did not contain an asterisk and
was not initialed by Mark Strickert, provides: “It is my intention by this
instrument to exempt, release, and hold harmless Scuba Shack and all related
entities as defined above from all liability whatsoever for personal injury, property
damage, and wrongful death caused by negligence.” Dkt. No. 54-1 at 4.
II.

Mr. Strickert’s Death
Upon mooring at Molokini Crater, two of the Double Scoop’s crew

members led six passengers on a scuba dive, while all four Strickerts and two other
passengers entered the water to snorkel. Defendants’ Concise Statements of Facts
(“Def’s CSF”) ¶ 2. Mr. Neal remained alone aboard the Double Scoop. Def’s CSF
¶ 2. It is unclear the exact amount of time that elapsed, but at some point after the
Double Scoop arrived at Molokini Crater, the weather worsened, causing
extremely high wind and waves. Def’s CSF ¶ 3. While the scuba divers and the
snorkelers were in the water, a 50-knot squall blew into Molokini. Plaintiff’s
6

Concise Statement of facts (“Plf’s CSF”) ¶ 35. All six scuba divers and the two
crew members, Jeff Bartunek and Alana Osaki, made it back to the vessel safely.
Def’s CSF ¶ 4. Of the snorkelers, Plaintiff, her daughter, and another passenger
returned to the vessel safely. Def’s CSF ¶ 5. However, Plaintiff’s son and another
snorkeler were not able to make it back to the vessel and became stranded on the
rocks along the Molokini Crater shoreline. Def’s CSF ¶ 6. Mr. Strickert was
unable to make it to the rocks or back to the vessel, despite the efforts of Mr.
Bartunek and Ms. Osaki. Def’s CSF ¶ 6. Later that day, the Coast Guard
recovered Mr. Strickert’s body near the Molokini shoreline. Def’s CSF ¶¶ 8-9.
The cause of Mr. Strickert’s death was drowning. Def’s CSF ¶ 9.
PROCEDURAL BACKGROUND
On November 13, 2014, Plaintiff filed a Complaint on behalf of herself, as
personal representative of her late husband’s estate, and as personal representative
for the benefit of her two children, based on the events that transpired on July 20,
2014. Dkt. No. 1.
Count I of the Complaint relating to negligence alleges, in relevant part:
Mr. Neal, MDCI, NEALCO, the vessel, and each of them,
negligently failed to use reasonable care to protect the safety of
the passengers aboard the vessel that day, including but not
limited to their failing to properly assess the weather
conditions, failing to provide the vessel with an adequate
number of crew to keep watch over the snorkelers while they
were in the water and effect a rescue if necessary, failing to
recognize the building danger in a timely manner and recall the
7

scuba divers immediately, and in Mr. Neal failing to go into the
water to effect a rescue when he had actual knowledge that Mr.
Strickert was in danger of losing his life.
Dkt. No. 1 at 6.
Count II of the Complaint relating to gross negligence alleges that “[t]he
misconduct of Mr. Neal, MDCI, and NEALCO, and each of them, was outrageous,
wanton, and willful, in reckless indifference for the rights of others, and constituted
an extreme departure from the applicable standard of conduct, which was
motivated in whole or in part by desire for financial gain.” Dkt. No. 1 at 7.
On September 21, 2015, Defendants filed their Motion for Summary
Judgment. Dkt. No. 51. Plaintiff filed her Opposition on October 16, 2015 [Dkt.
No. 56], and a Corrected Opposition on October 19, 2015 [Dkt. No. 59].
Defendants filed a Reply on October 22, 2015. Dkt. No. 63. The Court held a
hearing on the motion on November 18, 2015.
STANDARD OF REVIEW
A party is entitled to summary judgment “if the 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). “A fact is ‘material’ when, under the
governing substantive law, it could affect the outcome of the case. A ‘genuine
issue’ of material fact arises if ‘the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.’” Thrifty Oil Co. v. Bank of Am. Nat’l
8

Trust & Sav. Ass’n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
When evaluating a motion for summary judgment, the court must construe
all evidence and reasonable inferences drawn therefrom in the light most favorable
to the nonmoving party. See T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,
809 F.2d 626, 630–31 (9th Cir. 1987). Thus, the moving party has the burden of
persuading the court as to the absence of a genuine issue of material fact. Celotex
Corp v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies its burden,
the nonmoving party must set forth “‘significant probative evidence’” in support of
its position. T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat’l Bank v. Cities
Serv. Co., 391 U.S. 253, 290 (1968)). “A party asserting that a fact cannot be or is
genuinely disputed must support the assertion,” and can do so by either “citing to
particular parts of materials in the record” or by “showing 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).
DISCUSSION
I.

Application of Admiralty Jurisdiction

9

As a preliminary matter, the Court addresses both parties’ contention that
this Court has admiralty jurisdiction over this case. Courts use a two-prong test to
determine admiralty jurisdiction:
Under the first prong, a court must determine whether the tort
occurred on navigable water or whether injury suffered on land
was caused by a vessel on navigable water. Under the second
prong, two issues are raised: (1) whether the incident has a
‘potentially disruptive impact on maritime commerce’ (viewing
the ‘general features of the type of incident involved’) and (2)
whether the ‘general character’ of the ‘activity giving rise to the
incident’ bears a ‘substantial relationship to traditional maritime
activity.”
McClenahan v. Paradise Cruises, Ltd., 888 F. Supp. 120, 121 (D. Haw. 1995)
(quoting Grubart v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 532-34
(1995)).
As to the first prong, the incident at issue occurred in the ocean waters inside
Molokini Crater, which are indisputably navigable. As such, the jurisdictional
query hinges on the second prong. The second prong is satisfied “‘when at least
one alleged tortfeasor was engaging in activity substantially related to traditional
maritime activity and such activity is claimed to have been a proximate cause of
the incident.’” Id. at 122 (quoting Grubart, 513 U.S at 541). Here, the Complaint
alleges, among other things, that the Defendants were negligent by:
fail[ing] to use reasonable care to protect the safety of the
passengers aboard the vessel that day, including but not limited
to their failing to properly assess the weather conditions, failing
to provide the vessel with an adequate number of crew to keep
10

watch over the snorkelers while they were in the water and
effect a rescue if necessary, failing to recognize the building
danger in a timely manner and recall the scuba divers
immediately, and in Mr. NEAL failing to go into the water to
effect a rescue when he had actual knowledge that MR.
STRICKERT was in danger of losing his life.
Complaint ¶ 24.
The Complaint further alleges that “[a]s a direct, proximate and legal result
of the aforesaid delicts of [Defendants], Mr. Strickert suffered severe emotional
distress and conscious fear of impending death, severe physical pain and suffering,
loss of life, loss of enjoyment of life, and other non-economic damages[.]”
Complaint ¶ 25.
As the parties themselves agree, these allegations are sufficient to satisfy the
second prong because there is a nexus between traditional maritime activity and
the incident at issue. See, e.g., In re Paradise Holdings, Inc. 795 F.2d 756, 760
(9th Cir. 1986) (allegation that vessel collided with body-surfer established nexus
with traditional maritime activity); Sinclair v. Soniform, 935 F.2d 599, 602 (3rd
Cir. 1991) (holding that “the transport and care of passengers” aboard a dive boat
during a scuba cruise “bears a substantial relationship to a traditional maritime
activity”). As such, the Court determines that the application of admiralty
jurisdiction is proper.
II.

Count I: Negligence

11

Defendants assert that they are entitled to judgment as a matter of law as to
Count I because Mr. Strickert waived any negligence claims against them when he
signed the PADI DSD Release Agreement prior to embarking on the excursion.
Plaintiff asserts that the PADI DSD Release Agreement does not apply to
snorkeling or, alternatively, is invalid under admiralty law and Hawai’i state law.
The threshold question is the scope of the PADI DSD Release Agreement.
As explained further below, because there are questions of fact as to whether the
scope of the PADI DSD Release Agreement covers the incident at issue, summary
judgment is denied.1
A.

The Scope of the PADI DSD Release Agreement2

Defendants base their waiver claim on certain provisions in the PADI DSD
Release Agreement. Plaintiff argues that the scope of the PADI DSD Release
Agreement does not cover the incident at issue because Mr. Strickert was not
participating in the Discover Scuba Diving program when the instant claims arose.
As such, Plaintiff contends that the PADI DSD Release Agreement is inapplicable.
“In admiralty cases, the courts traditionally construe the language of
exculpatory clauses strictly against the drafter.” In re Wechsler, 121 F. Supp. 2d

1

Based on this conclusion, the Court does not reach the question of whether the PADI DSD
Release Agreement is invalid under admiralty law or Hawaiʻi law.
2

Defendants concede that the PADI DSD Release Agreement and the Molokini Divers Release
Agreement do not cover claims of gross negligence. See Dkt. No. 63 at 12.

12

404, 435 (D. Del. 2000). Courts give full effect to exculpatory clauses only
“[w]hen the contractual language is clear and unequivocal and plainly indicates the
intentions of the parties[.]” Id. Contrary to Defendants’ assertions, the PADI DSD
Release Agreement does not unequivocally indicate that it covers the incident at
issue. Rather, there are several ambiguities as to its intent and scope, precluding
summary judgment in favor of Defendants at this stage in the proceedings.
The PADI DSD Release Agreement provides in relevant part:
I understand and agree that neither the dive professionals
conducting this program, Jeff Bartunek, nor the facility through
which this activity is conducted Scuba Shack, nor International
PADI, Inc., nor any of their respective employees, officers,
agents or assigns (hereinafter referred to as “Released Parties”)
may be held liable or responsible in any way for any injury
death or damages to me, my family, estate, heirs or assigns that
may occur as a result of my participation in this program or as
a result of the negligence of any party, including the Released
Parties, whether passive or active.
Neal Decl. Exh. 1 (emphasis added).
The parties dispute several provisions in the aforementioned paragraph.
First, they dispute the meaning of the term “this program.” Plaintiff asserts that the
term “this program” refers specifically to a Discover Scuba Diving program in
which Mr. Strickert indisputably was not participating when the instant claims
arose. In support, Plaintiff points to the deposition testimony of Jeff Bartunek,
who admitted that the Strickerts were not participating in a Discover Scuba Diving
program when they were snorkeling at Molokini. Decl. of John Hillsman
13

(“Hillsman Decl.”) Exh. 2. Rather, it appears the Strickerts intended to participate
in the Discover Scuba Diving program only at Turtle Town, a different location off
the coast of Maui to which the Double Scoop was headed after leaving Molokini
that morning. Defendants contend that the use of the term “this program” is broad
enough to encompass the snorkeling activity that Mr. Strickert was engaged in at
the time of the incident, and thus, the PADI DSD Release Agreement bars
Plaintiff’s negligence claims. Although snorkeling is not expressly mentioned
anywhere in the PADI DSD Release Agreement, Defendants maintained at the
hearing that snorkeling is similar to scuba diving and skin diving, which are
expressly mentioned. Defendants’ position, however, raises the question of
whether snorkeling is similar enough to scuba diving and skin diving to be
encompassed by the PADI DSD Release Agreement. The Court concludes that
this is a question of fact.3

3

The Court notes that the Molokini Divers Release Agreement, which defense counsel confirmed
at the hearing was not signed by Mr. Strickert on behalf of himself, but rather on behalf of his
son, does expressly mention snorkeling. The presence of the two waivers, the PADI DSD
Release Agreement and the Molokini Divers Release Agreement, also raises questions regarding
whether Defendants considered snorkeling and scuba diving as the same activity. Indeed, the
Defendants saw fit to expressly include snorkeling and scuba diving as distinct activities in the
Molokini Divers Release Agreement.
The Court further notes that Mr. Strickert did not initial the paragraph of the Molokini
Divers Release Agreement stating: “It is my intention by this instrument to exempt, release, and
hold harmless Scuba Shack and all related entities as defined above from all liability whatsoever
for personal injury, property damage, and wrongful death caused by negligence.” Dkt. No. 54-1
at 4. The absence of Mr. Strickert’s initial next to this paragraph cuts against Defendants’
argument that Mr. Strickert clearly intended to release Defendants from all liability for personal
injury and wrongful death caused by Defendants’ negligence.

14

Second, there is also ambiguity in the portion of the PADI DSD Release
Agreement releasing Defendants from any injury or damages “as a result of the
negligence of any party, including the Released Parties, whether passive or active.”
Defendants wish to read this portion of a single clause outside the context of the
entirety of the form. However, “[b]asic principles in the common law of contracts
readily apply in the maritime context.” Clevo Co. v. Hency Transp., Inc., 715 F.3d
1189, 1194 (9th Cir. 2013). The Ninth Circuit looks to the Restatement (Second)
of Contracts as a source for general contract principles. See id. In resolving the
question of whether terms in a contract are ambiguous, a court may not view the
particular terms in a vacuum. See Restatement (Second) of Contracts § 202(2) (“A
writing is interpreted as a whole, and all writings that are part of the same
transaction are interpreted together.”). Rather, a court must view the terms in the
context of the entire integrated agreement. See id.; see also Klamath Water Users
Protective Ass’n v. Patterson, 204 F.3d 1206, 1210 (9th Cir. 1999) (“A written
contract must be read as a whole and every part interpreted with reference to the
whole, with preference given to reasonable interpretations.”). Here, the context of
the entire form suggests that the clause Defendants cite applies solely to the
Discover Scuba Diving Program. The title of the form, “PADI Discover Scuba
Diving Participant Statement” strongly supports this view, as do the numerous
references throughout the document to the “PADI Discover Scuba Diving
15

program,” “the program,” and, more generally, to scuba diving. When the terms at
issue are viewed in this light, their exact meaning is, at best, ambiguous, insofar as
they relate to Mr. Strickert’s activities at Molokini.
In sum, the application or even relevance of the PADI DSD Release
Agreement to the instant event on July 20, 2014 raises questions of fact that
preclude summary judgment. Accordingly, Defendants’ Motion for Summary
Judgment as to Count I is denied.
III.

Count II: Gross Negligence
Defendants contend that they are entitled to judgment as a matter of law on

Plaintiff’s claim of gross negligence because Plaintiff failed to allege facts or
produce evidence establishing the higher degree of culpability associated with that
theory. In response, Plaintiff contends that she has put forward sufficient
allegations and evidence creating, at the very least, a genuine issue of material fact.
Alternatively, Plaintiff requests that the Court defer or deny Defendants’ motion
under Fed. R. Civ. P. 56(d), as Plaintiff has not had the opportunity to depose
relevant witnesses, including Mr. Neal. The Court concludes that the allegations in
the Complaint, coupled with the depositions and declarations provided by Plaintiff,
are sufficient to survive a motion for summary judgment.
Because the Court’s jurisdiction is grounded in admiralty, the Court “look[s]
to common law in considering maritime torts.” Royal Ins. Co. of America v.
16

Southwest Marine, 194 F.3d 1009, 1015 (9th Cir. 1999). Gross negligence requires
“‘the intentional failure to perform a manifest duty in reckless disregard of the
consequences as affecting the life or property of another; such a gross want of care
and regard for the rights of others as to justify the presumption of willfulness and
wantonness.’” Id. (quoting Black’s Law Dictionary 1185 (4th ed. 1968)); see also
Pancakes of Haw., Inc. v. Pomare Props. Corp., 85 Hawai’i 286, 293, 944 P.2d 83,
90 (App. 1997) (noting that gross negligence has been defined as “[i]ndifference to
a present legal duty and utter forgetfulness of legal obligations so far as other
persons may be affected” (citation and quotation signals omitted)). It is also
recognized that gross negligence “is simply a point on a continuum or probability,
and its presence depends on the particular circumstances of each case.” Royal Ins.
Co. of Am., 194 F.3d at 1015 (citation and quotation signals omitted); see also
Pancakes of Hawai’i, Inc., 85 Hawai'i at 293, 944 P.2d at 90 (“The element of
culpability that characterizes all negligence is in gross negligence magnified to a
high degree as compared with that present in ordinary negligence.” (quotations
signals and alterations omitted)).
In the instant case, the Complaint alleges in relevant part:
14. Weather and sea conditions worsened and Mr. Neal began
waving at the snorkelers to return to the vessel. Mrs. Strickert
and her daughter [C.H.S.], who were snorkeling together, were
able to make their way back to the vessel and re-board it,
although with difficulty due to sea conditions.
17

15. Mr. Strickert and his son [C.S.S.], who were snorkeling
together, were not able to make their way back to the vessel.
16. After they re-boarded the vessel, Mrs. Strickert and her
daughter could see Mr. Strickert and [C.S.S.] in distress waving
for help, along with another snorkeler, a lady named Jennifer,
who was near them.
17. Mr. Neal could also see the three snorkelers in trouble in
the water, waiving for help.
18. Mrs. Strickert repeatedly asked Mr. Neal to go into the
water to help them, but he would not go, saying he could not go
get them until the scuba divers were up.
19. As Mrs. Strickert and her daughter watched, her son
[C.S.S.] was swept by a large wave toward some rocks. She
pleaded with Mr. Neal to help him and her husband. Mr. Neal
would not respond.
20. Mrs. Strickert then saw her son scramble up onto the rocks,
saw Jennifer near the rocks trying to get up on them, but she
lost sight of her husband. Mrs. Strickert again pleaded with
Mr. Neal to go into the water to find her husband and help him,
as did her daughter [C.H.S.]. Mr. Neal watched and did
nothing.
21. Several minutes later, Mr. Neal began banging on the hull
of the vessel with a weight to signal the divers to return to the
vessel. A few minutes after that, the divers began returning to
the vessel.
22. When the two crew members surfaced and heard what had
happened, they began hurrying all the divers to get back aboard.
After the divers were all back aboard, one of the crew members
went to the rocks where Mrs. Strickert’s son [C.S.S.] and
Jennifer were waiting for help.
23. Mrs. Strickert continued to plead with Mr. Neal to look for
her husband and help him. At this point, after the crewman in
18

the water made a signal to Mr. Neal indicating that someone
was dead, Mr. Neal called the U.S. Coast Guard. After a Coast
Guard vessel arrived, Mr. Strickert’s body was recovered by
Coast Guard personnel and taken ashore, where he was
pronounced dead.
Complaint ¶¶ 14-23 (emphases added).
The Court first concludes that the foregoing allegations are sufficient to
survive summary judgment because they at the very least raise a triable as to
whether Mr. Neal’s conduct falls within the definition of “gross negligence.” The
allegations that Mr. Neal was aware that Mr. Strickert was visibly in distress in the
open ocean and that despite Plaintiff’s repeated pleas to Mr. Neal to assist her
husband, Mr. Neal, for at least several minutes, stood and “did nothing” to assist
Mr. Strickert suggest an “[i]ndifference to a present legal duty and utter
forgetfulness of legal obligations so far as other persons may be affected.”
Pancakes of Hawai’i, Inc., 85 Hawai’i at 293, 944 P.2d at 90. The Court further
concludes that the circumstances surrounding Mr. Strickert’s death as alleged in
the Complaint are sufficient to raise a triable issue as to causation.
Second, the Court concludes that Plaintiff has put forward sufficient
evidence to support her allegations of gross negligence. Plaintiff’s deposition
testimony closely mirrors the allegations in the Complaint. Specifically, Plaintiff
testified that when she saw her husband, her son, and a third snorkeler in the water
waiving, she “told Mr. Neal that something must be wrong and he needed to go get
19

them.” Exh. 1 at 104:13-105:3. However, “[Mr. Neal] didn’t say anything” or do
anything in response. Exh. 1 at 105:5. The conditions at that time consisted of
pouring rain, rough water, and big waves. Exh. 1 at 105:6-9. Plaintiff testified that
Mr. Neal simply stood there for “several minutes” before he eventually banged on
the boat, signaling the scuba divers to surface. Exh. 1 at 113:16-114:24.
In addition, Plaintiff’s two experts support the conclusion that a reasonable
trier-of-fact could determine that Defendants were grossly negligent. Professor
Margaret McManus, a professor of Oceanography at the University of Hawai’i,
reviewed the available weather data for the days preceding the date of the incident.
Declaration of Margaret McManus (“McManus Decl.”) at ¶¶ 2, 8-15. After
highlighting several National Weather Service (“NWS”) announcements that were
issued, Professor McManus opined that “[n]o reasonably prudent mariner,
exercising even scant care, would have considered departing Kihei harbor in a
small vessel like Double Scoop on the morning of July 20, 2014, much less taken a
group of passengers for hire on a snorkel-and-dive trip to Molokini, without
monitoring those NWS announcements.” McManus Decl. at ¶¶ 15-16.4 Captain
Bret Gilliam, a licensed mariner and a 44-year veteran of the professional diving
4

The Court concludes, contrary to Defendants’ contention, that Professor McManus is qualified
to render this opinion based on her knowledge, skill, experience, training, and education, which
includes having “participated in 40 expeditions, with over 400 days in the marine
environment[,]” and being “regularly called upon to consider the weather when planning or
conducting expeditions in the marine environment.” McManus Decl. at ¶¶ 2, 6. Defendants
may, of course, challenge Professor McManus’ expertise and conclusions at trial.

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industry, outlined in his declaration how he believed Defendants’ conduct
“constituted an extreme departure from ordinary, industry-wide standards of care
and were a direct and proximate cause of [Mr. Strickert’s] death.” Declaration of
Bret Gilliam (“Gilliam Decl.”) at ¶ 11. For example, Captain Gilliam opined:
[Captain Neal] failed to utterly respond to the emergency that
developed when the squall blew into Molokini, and instead
stood inertly on the deck of his vessel for several unforgiving
minutes, while three imperiled passengers waived and called for
help from the water, when any prudent operator, exercising
even scant care, would have recalled all the scuba divers at the
first sign of trouble, and directed his two crew members to drop
their gear in the water, and go to the immediate aid of the
snorkelers.
Gilliam Decl. at ¶ 11 (emphasis added).
“In this circuit, expert opinion is admissible and may defeat summary
judgment if it appears that the affiant is competent to give an expert opinion and
the factual basis for the opinion is stated in the affidavit, even though the
underlying factual details and reasoning upon which the opinion is based are not.”
Walton v. U.S. Marshals Service, 492 F.3d 998, 1008 (9th Cir. 2007) (internal
brackets, quotations marks, and citation omitted). The opinions of Professor
McManus and Captain Gilliam satisfy this standard. Drawing all inferences in
favor of Plaintiff, a jury could reasonably conclude that Mr. Neal’s decision to
proceed with the scuba-and-snorkeling excursion on July 20, 2014 despite the
NWS announcements, and his failure to immediately respond to the snorkelers,
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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.’” Royal Ins. Co. of Am., 194 F.3d at 1015 (quoting
Black’s Law Dictionary 1185 (4th ed. 1968)).
In sum, because both the allegations and evidence raise triable issues of fact
as to whether Defendants were grossly negligent, Defendants’ Motion for
Summary Judgment as to Count II is denied .
CONCLUSION
The Court hereby DENIES Defendants’ Motion for Summary Judgment
(Dkt. No. 51).
IT IS SO ORDERED.
DATED: November 30, 2015 at Honolulu, Hawai‘i.

Strickert v. Neal; CV 14-00513 DKW-RLP; ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT

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