Manchanda v. Hays Worldwide LLC et al
Filing
50
MEMORANDUM OPINION. Signed by District Judge James C. Cacheris on 10/08/2015. (dvanm, )
IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF VIRGINIA
Alexandria Division
MONA MANCHANDA,
Plaintiff,
v.
HAYS WORLDWIDE, LLC, et al.,
Defendants.
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M E M O R A N D U M
1:14cv1339 (JCC/TCB)
O P I N I O N
This matter came before the Court on Defendants Hays
Worldwide, LLC and David Hays’ (collectively “Defendants”)
motion for summary judgment.
[Dkt. 43.]
Plaintiff Mona
Manchanda filed this wrongful death action as personal
representative of the estate of Eena Singh Karras (“Karras”).
Plaintiff alleges that Defendants’ negligence caused Karras to
drown during an instructional scuba dive that Defendants
supervised.
For the reasons set forth below, the Court will
deny Defendants’ motion.
I.
Background
The following facts are taken from the parties’ Local
Rule 56(B) statements and are undisputed1 unless otherwise
1
For ease, undisputed facts are referred to by “SOF”
without a party designation.
1
indicated.
(See Defs.’ Stmt. of Facts (“SOF”) [Dkt. 44] at 3-
15; [Dkt. 45] at 16.)
In 2012, Defendant David Hays, together with his wife
Janet, owned and operated Splash Dive Center.2
(SOF ¶ 1.)
Through this dive shop, Hays had certified over 400 scuba divers
under the Professional Association of Diving Instructors
(“PADI”) Open Water Diver curriculum.
[Dkt. 48-7] at 128.)
(See Pl.’s Hays Dep.
This curriculum requires students to
complete classroom “knowledge development” sessions, “confined
water dives” in a pool, and four “open water dives.”
(SOF ¶¶ 3,
12-13.)
Anticipating an anniversary trip to the Caribbean,
Eena Karras and her husband Thomas registered for a PADI Open
Water Diver course at Splash Dive Center in March 2012.
¶ 15.)
(SOF
Within a month, Karras and Thomas completed the
classroom sessions and confined-water dives, leaving only four
open-water dives left before their PADI certification.
¶¶ 12-13.)
(SOF
They set aside a weekend in May 2012 to complete
these four dives at Lake Rawlings, Virginia.
(SOF ¶ 15.)
Lake Rawlings is actually a quarry that has been
converted into a popular dive site.
(Id.)
The underwater
landscape has many features for dive training, like submerged
2
Splash Dive Center was the business name for Defendant
Hays Worldwide, LLC. (SOF ¶ 1.) This opinion uses the two
names interchangeably to refer to Defendant Hays Worldwide, LLC.
2
platforms for practicing buoyancy control, and items for divers
to tour, like sunken boats, cars, and even a plane.
[Dkt. 46-11].)
(Dive Map
The conditions at Lake Rawlings on that May
weekend “were optimum or near optimum” for diving and there was
“excellent light in the water in order for divers to see.”
(SOF
¶ 20; Defs.’ Hays Dep. [Dkt. 46-6] at 149-50.)
Defendant Hays met Karras, Thomas, and four other
students at the lake on Saturday morning, May 26, 2012, to
instruct the first open-water dive.
(SOF ¶ 18.)
Hays began, in
accordance with PADI standards, by pairing the six students into
three buddy teams and briefing them on the dive.
(SOF ¶ 21.)
The briefing included an equipment check, a buddy safety check,
a description of the skills to be performed on the dive, and a
buoyancy check.
47-48.)
plan.
(SOF ¶¶ 21-23; Defs.’ Hays Dep. [Dkt. 46-6] at
The students completed the Saturday dives according to
(Defs.’ Hays Dep. at 51.)
The only notable incident on
Saturday occurred at the end of the afternoon dive when Karras
experienced some panic, forcing her to surface. (Pl.’s Mem. in
Opp’n ¶ 4.)
Karras’ husband followed her and learned that she
“got scared and a little confused.”
48-1] at 75.)
(Pl.’s Thomas Dep. [Dkt.
Hays joined the two at the surface and told
Karras she could either rejoin the group or swim to shore early.
(Id.)
early.
According to Thomas, Karras elected to swim to shore
(Pl.’s Mem. in Opp’n ¶ 5.)
3
Hays, however, recalls that
Karras rejoined the group and completed the dive.
Dep. at 52-54.).
(Defs.’ Hays
Regardless of this discrepancy, the Saturday-
afternoon dive ended without any other problems.
The focus of this case concerns the third dive, which
began before noon on Sunday, May 27, 2012.
(SOF ¶ 25.)
Before
the dive, Hays led the students through the same safety checks
and briefings as on the prior day, including checking “buoyancy,
the air supply, the regulators, the weight configuration, weight
releases and then a final locating themselves in their buddy
teams.”
(SOF ¶¶ 29, 31; Defs.’ Hays Dep. at 70.)
The dive plan
required students to tour a sunken boat at a depth of 35-40
feet.
(SOF ¶ 29.)
Karras expressed some concern to Hays about
the depth, asking if it was necessary for her to dive to 40
feet.
(Defs.’ Hays Dep. at 68-69.)
Hays explained that the
course required diving to this depth, but that she could elect
not to dive or could call off the dive “at any time for any
reason and not expect any ill repercussions.”
(Id. at 67-69.)
Karras decided to participate in the dive and paired in a buddy
group with her husband Thomas.
(SOF ¶ 32.)
After some preliminary buoyancy drills and navigation
trainings at shallow depths, Hays led the ground toward the
sunken boat for a tour.
(Id.)
The boat was perched on a ledge
35 or 40-feet down a steep rock wall that continued to drop
below the ledge to the bottom of the lake.
4
(SOF ¶ 33.)
During
the tour of the boat, Karras had trouble maintaining consistent
buoyancy.
(Pl.’s Thomas Dep. at 108.)
Thomas testified that he
and Karras both became positively buoyant during the tour,
meaning they floated toward the surface.
(Id.)
Despite these
buoyancy problems, Hays testified that all six students
successfully ascended from touring the sunken boat and regrouped
at around 15-feet deep for a three-minute safety stop.
(SOF
¶ 35.)
Sometime during the safety stop, Hays lost sight of
Karras.
(Id.)
No one, including Thomas and Hays, saw how
Karras became separated from the group.
(SOF ¶ 41.)
Hays
remembers noticing Karras when he glanced up from the countdown
timer on his dive computer sometime during the second minute of
the stop.
(Defs.’ Hays Dep. at 102.)
But when he looked up
forty-five to seventy seconds later, Karras was gone.
¶ 41.)
(Id.; SOF
Hays signaled for the group to surface where he learned
that no one knew where Karras was.
at 103.)
(SOF ¶ 36; Defs.’ Hays Dep.
Hays then ordered the group to swim to shore so he
could search for the missing Karras.
(SOF ¶¶ 37-38.)
Hays first searched for Karras on the surface, but he
could not see her.
(SOF ¶ 38.)
underwater, but to no avail.
He then retraced the dive
(Id.)
Eventually, other divers
around the lake were recruited to aid the search.
(Id.)
Over
an hour after anyone had seen Karras alive, one of the recruited
5
divers found her 57-feet deep at the bottom of the steep wall
and unresponsive.
(Id. ¶ 39; Dive Data [Dkt. 48-3] at 3-5.)
Divers pulled her body to a dock where medical professionals
present at the lake began administered rescue procedures.
¶ 39.)
(SOF
When EMS arrived, they could not get a pulse from
Karras.
(Id. ¶ 40.)
A helicopter came to transport her to the
nearest hospital with a hyperbaric chamber, but she flat-lined
in flight.
(Id.)
Plaintiff alleges that these facts prove Defendants
were negligent in several ways, including negligently
supervising Karras during the dive, ineffectively assisting
Karras once rescue was necessary, rendering inadequate care
after she was removed from the lake, improperly equipping
Karras, understaffing the dive, failing to have proper rescue
equipment at the lake, and inadequately training Splash Dive
Center employees.
(See Pl.’s Compl. ¶ 18; Pl.’s Mem. in Opp’n
[Dkt. 48] at 14-15.)
In a prior motion, Defendants moved to
dismiss this case for failure to sufficiently allege any
proximate cause between Defendants’ negligence and Karras’
drowning.
[Dkt. 3.]
Defendants also asserted the affirmative
defenses of assumption of risk and pre-injury waiver of
liability.
The Court denied Defendants’ motion, finding that
Plaintiff satisfied the plausibility pleading standard and that
Defendants’ affirmative defenses were not yet fit for
6
consideration.
[Dkt. 16.]
Similarly, in the present summary
judgment motion, Defendants argue that proximate causation is
lacking and Karras assumed the risk of death.
Because
reasonable jurors could reach different conclusions on these
issues, the Court will deny that motion.
II.
Legal Standard
Summary judgment is appropriate only where, on the
basis of undisputed material facts, the moving party is entitled
to judgment as a matter of law.
See Fed. R. Civ. P. 56; Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The moving party
bears the initial burden of “informing the district court of the
basis for its motion” and identifying the matter “it believes
demonstrate[s] the absence of a genuine issue of material fact.”
Celotex, 477 U.S. at 323.
Once a motion for summary judgment is
properly made and supported, the opposing party has the burden
of showing that a genuine dispute exists.
See Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986);
see also Ray Commc’ns, Inc. v. Clear Channel Commc’ns, Inc., 673
F.3d 294, 299 (4th Cir. 2012) (stating the opposing party must
“come forward with specific facts showing that there is a
genuine issue for trial”).
Importantly, the non-moving party
must show more than some metaphysical doubt as to the material
facts.
“[T]he non-moving party ‘may not rest upon mere
allegation or denials of his pleading, but must set forth
7
specific facts showing that there is a genuine issue for
trial.’”
Hughes v. Bedsole, 48 F.3d 1376, 1381 (4th Cir. 1995)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986)).
When reviewing the record on summary judgment, the
Court “must draw any inferences in the light most favorable to
the non-movant” and “determine whether the record taken as a
whole could lead a reasonable trier of fact to find for the nonmovant.”
Brock v. Entre Computer Ctrs., Inc., 933 F.2d 1253,
1259 (4th Cir. 1991).
“[A]t the summary judgment stage the
judge’s function is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there
is a genuine issue for trial.”
477 U.S. 242, 249 (1986).
Anderson v. Liberty Lobby, Inc.,
Where there is conflicting evidence,
the court must credit the evidence of both sides and acknowledge
that there is a genuine issue of material fact that cannot be
resolved by summary judgment.
See Tolan v. Cotton, 134 S. Ct.
1861, 1868-69 (2014) (stating that summary judgment is
inappropriate where each side has put forward competent evidence
that raises a dispute about a material fact).
8
III. Analysis
A.
Proximate Cause
To succeed on her Virginia common law negligence
claim,3 Plaintiff must prove (1) the existence of Defendants’
legal duty; (2) a breach of that duty; (3) the breach was the
proximate cause of injury; and (4) resulting damages.
Blue
Ridge Serv. Corp. of Va. v. Saxon Shoes, Inc., 624 S.E.2d 55, 62
(Va. 2006).
Of these prima facie elements, Defendants currently
contest only the existence of proximate cause.
According to
Defendants, the facts only show purported negligence followed by
an accident, without any causation connecting the two.
They
further argue that Plaintiff has not disproven the possibility
that several intervening causes could have led to Karras’
drowning, such as a heart attack, unconsciousness, or lung
damage.
(Defs.’ Mem. in Supp. at 25-26.)
For the following
reasons, the Court finds these arguments unavailing.
Under Virginia’s “long accepted definition,” the
“proximate cause of an event is that act or omission which, in
natural and continuous sequence, unbroken by an efficient
intervening cause, produces that event, and without which that
3
All of the injuries alleged in this case occurred
within Virginia. Thus, the Court applies Virginia law to this
state cause of action. See Colgan Air, Inc. v. Raytheon
Aircraft Co., 507 F.3d 270, 275 (4th Cir. 2007) (“Under Virginia
law, the rule of lex loci delicti, or the law of the place of
the wrong, applies to choice-of-law decisions in tort
actions.”).
9
event would not have occurred.”
Ford Motor Co. v. Boomer, 736
S.E.2d 724, 728 (Va. 2013) (quoting Wells v. Whitaker, 151
S.E.2d 422, 428 (Va. 1966)).
This definition encompasses
concepts of both factual, or but-for, causation, see id. (“We
said in Wells that the first element of proximate cause,
causation in fact, is ‘often described as the ‘but for’ or sine
qua non rule.”), and of the directness or continuity between the
negligence alleged and the plaintiff’s injuries, see e.g.,
Wagoner v. Commonwealth, 756 S.E.2d 165, 175 (Va. Ct. App. 2014)
(“[T]he concept of proximate cause ‘excludes from the scope of
liability injuries that are too remote, purely contingent, or
indirect[].”
(quoting CSX Transp., Inc. v. McBride, 131 S. Ct.
2630, 2642 (2011) (Roberts, C.J., dissenting))); see also Ford
Motor Co., 736 S.E.2d at 728 (“Proximate cause has been
described as a shorthand descriptive phrase for the limits the
law has placed upon an actor’s responsibility for his
conduct.”).
Proximate causation is a fact-intensive inquiry that
ordinarily requires resolution by a jury.
See Phillips v. Se.
4-H Educ. Ctr., Inc., 510 S.E.2d 458, 460-61 (Va. 1999).
A
plaintiff, however, must present sufficient evidence to “remove
the case out of the realm of speculation and conjecture.”
Id.
In this case, Plaintiff has presented sufficient evidence for a
10
reasonable jury to find that Defendants’ negligence proximately
caused Karras’ death by drowning.
The Virginia Supreme Court’s jurisprudence on
lifeguard negligence lends a helpful analogy to this case.
See
Phillips, 510 S.E.2d at 461; Blacka v. James, 139 S.E.2d 47, 51
(Va. 1964).
Under that precedent, it may be inferred that the
causal chain between negligent supervision and a swimmer’s death
involves two links.
First, some sign of distress must have been
present that would have put a non-negligent lifeguard or
supervisor on notice that a swimmer was in peril.
C.f.
Phillips, 510 S.E.2d at 461 (“A lifeguard’s duty is twofold.
‘First, he has some duty to observe swimmers for signs of
distress; second, he has some duty at some point to attempt to
rescue those in distress.’” (quoting S&C Co. v. Horne, 235
S.E.2d 456, 459 (Va. 1977)).
Second, a non-negligent supervisor
must then have been able to prevent the drowning through
appropriate action.
Id.
The Court finds that a reasonable jury
could find that this causal chain is present here.
Looking at the first link, it is reasonable to
conclude that Hays would have recognized Karras’ dangerous
situation if he was directly supervising her.4
4
The Court notes
At this stage, the concept of appropriate “direct
supervision” is not defined. But Defendants’ expert witness,
Dr. Keith David Sawatzy, defined direct supervision as ranging
from “physically being able to reach out and grab the student at
11
at the outset that no one on the dive saw how Karras became
separated from the group.
Thus, no one can testify as to
whether she gave a distress signal, produced a concerning amount
of bubbles, or made any other movements that might have signaled
trouble.
(See Galambos Dep. [Dkt. 48-4] at 43 (affirming that
no “witness statement or other evidence shows that she
panicked”).)
In Blacka v. James, the Virginia Supreme Court
found proximate cause lacking as a matter of law in a drowning
case because the swimmer made no observable signs that would
have alerted a lifeguard to his peril.
1964).
139 S.E.2d 47, 51 (Va.
The child in Blacka drowned in a small lake where 300-
500 other people were swimming, but “not one of them saw the
James boy in any difficulty whatever or heard any cry of
distress.”
Id.
The court noted that “[l]ifeguards are to aid
those in distress, and unless there is some cause to believe
that one is in distress they cannot be expected to act.”
Id.
Although no one can testify as to whether Karras gave signals of
distress, her separation from the group indicated peril in a way
that was not possible in Blacka.
Unlike in Blacka, Hays’ underwater supervision would
have allowed him to evaluate Karras’ condition based on her
depth alone.
The maximum target depth for this dive was 35-40
any point in time, to being aware of where the students are but
certainly not necessarily so close that you could grab them.”
(Sawatzky Dep. [Dkt. 48-6] at 23.)
12
feet.
(SOF ¶ 29.)
And at the time Karras is believed to have
disappeared, the students were treading water around 15-20 feet
deep.
(Defs.’ Hays Dep. at 98.)
Despite the target depth,
Karras’ dive computer shows she was 57-feet deep when air
stopped flowing from her regulator.
at 4.)
(See Dive Data [Dkt. 48-3]
One expert concluded from this dive computer data that
Karras was still alive when she was at least 45-feet deep.
(Sawatzky Dep. at 30.)
By Hays’ own testimony, seeing Karras
outside of the target depth range would have caused him to
react.
(Pl.’s Hays Dep. at 126-27.)
Hays would have signaled
Karras if he saw her at 30 feet and immediately would have swum
after her if he saw her at 47 feet.
(Id. 126-27.)
From this, a
reasonable jury could conclude that Karras’ depth would have
alerted a non-negligent instructor of her need for help as she
descended away from the group.
Even if Hays had observed Karras at an alarming depth,
the causal chain also requires that he could have then prevented
her drowning.
A reasonable jury could have found this second
link through the testimony of Hays and Defendants’ expert.
In
his deposition testimony, Hays described the action he would
have taken if he had seen Karras at an inappropriate depth.
(Pl.’s Hays Dep. at 127-28.)
Karras a signal to ascend.
First, he would have first given
(Id. at 127.)
Then, if she did not
comply with the signal, he would have swum to her to make
13
physical contact, assess her responsiveness, and perform a
rescue maneuver, if necessary.
(Id. at 127-28.)
Hays also
testified that he would have “immediately gone down and grabbed
her BCD and escorted her up to the top of the ledge” if he saw
Karras at 47 feet.
(Id.)
It is arguable whether Hays could
have successfully performed a rescue from this depth, given that
a safe ascent rate for the rescue of a non-responsive diver is
30 feet-per-minute.
(Pl.’s Hays Dep. at 128.)
But, an expert
gave his opinion that Karras was both alive and conscious at
least two minutes after Hays last saw her.
23.)
(Sawatzky Dep. at
From this, a reasonable jury could conclude that direct
supervision would have alerted Hays to Karras’ situation and he
could have swum to her rescue in time to prevent her drowning.
Defendants argue that Phillips v. Southeast 4-H
Educational Center, Inc., should lead the Court to find no
proximate cause here.
In Phillips, the Virginia Supreme Court
affirmed a trial court decision that, as a matter of law, there
was no proximate cause connecting two lifeguards’ negligent
rescue to a swimmer’s drowning.
510 S.E.2d 458, 461 (Va. 1999).
The swimmer in Phillips was standing in the shallow end of a
pool after swimming laps while holding his breath.
Id. at 459.
The lifeguards then watched the swimmer dip back underwater and
sit on the pool bottom, sending bubbles to the surface.
Id.
When the bubbles eventually stopped, one of the lifeguards
14
jumped in “within moments.”
Id.
The lifeguard pulled the
swimmer out of the water, but he had no pulse and CPR could not
resuscitate him.
Id. at 459-60.
The court found proximate
cause lacking because there was no indication when the swimmer’s
pulse stopped.
Id. at 461.
Without that evidence, it remained
speculative whether a non-negligent rescue would have presented
anything more than “an undefined ‘good chance’ of recovery.”
Id.
Unlike in Phillips, Karras’ entire dive was monitored by
her dive computer which recorded her dive time, air usage, and
depth.
(See Dive Data [Dkt. 48-3] at 3-5.)
This information,
when interpreted by an expert, arguably creates a timeline of
Karras’ breathing that permits the reasonable conclusion that
Hays could have saved Karras with non-negligent supervision.
In addition to adequately proving factual causation,
Plaintiff has shown Hays’ negligent supervision was a
sufficiently direct cause of Karras’ death.
listed the cause of death as drowning.
A medical examiner
(SOF ¶ 42.)
There was
no medical evidence of a superseding injury or physical event
that would have caused the drowning.
The medical examiner also
found no evidence of a lung injury common to divers who ascend
too quickly.5
Furthermore, Karras’ equipment was found to be in
5
The Court acknowledges that the rescue procedures may
have prevented the medical examiner from discovering evidence of
lung injury. (See SOF ¶ 42; Posthumus Dep. [44-13].) The
Court’s function at summary judgment, however, is not “to weigh
15
“perfect” working order.
(SOF ¶ 43.)
Thus, a reasonable jury
could find that the drowning was a natural and continuous injury
resulting from Defendants’ negligence.
In conclusion, Plaintiff has presented sufficient
evidence of both factual causation and directness of injury to
remove the question of proximate cause from the realm of
speculation.
Therefore, the Court will deny Defendants’ motion
for summary judgment on this ground.
The Court now turns to Defendants’ second argument,
that Karras’ assumption of risk should bar her claim.
B.
Assumption of Risk
Under Virginia law, “a person’s voluntary assumption
of the risk of injury from a known danger operates as a complete
bar to recovery for a defendant’s alleged negligence in causing
that injury.”
Thurmond v. Prince William Prof’l Baseball Club,
Inc., 574 S.E.2d 246, 249 (Va. 2003).
A defendant may prevail
on this defense by proving the plaintiff (1) fully appreciated
the nature and extent of the risk; and (2) voluntarily incurred
that risk.
Burns v. Washington Metro. Area Transit Auth., No.
1:12-cv-123, 2012 WL 2878250, at *2 (E.D. Va. July 12, 2012).
The focus of this analysis is on the risk alleged to have caused
the injury, not merely the risk inherent in an activity.
See
the evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
16
Amusement Slide Corp. v. Lehmann, 232 S.E.2d 803, 820 (Va. 1977)
(finding plaintiff assumed general risk of amusement slide but
did not assume risk of employee inattention, “which was the risk
here involved”).
This is a subjective inquiry into what the
particular plaintiff fully appreciated, not what a reasonable
person would have known.
See id. at 818 (“[T]he standard
primarily to be applied to [assumption of risk] ‘is a subjective
one, of what the particular plaintiff in fact sees, knows,
understands and appreciates.’”).
“The defense of assumption of
risk ordinarily presents a jury question.”
Thurmond, 574 S.E.2d
at 249.
Defendants argue Karras assumed the risk of panic and
drowning by entering the water for her third dive after signing
two Assumption of Risk Agreements (“Agreements”) and completing
the PADI instructional sessions and confined-water dives.
(Defs.’ Mem. in Supp. at 19-23.)
The Agreements purport to
release Defendants from liability for “any injury, death, or
other damages” occurring “as a result of the negligence of any
party.”
(SOF ¶ 4.)
Furthermore, the Agreements state that
Karras “expressly assume[s]” all risks of injury.
(Id.)
Plaintiff responds by arguing that the Agreements are void under
Virginia’s public policy against waivers of personal-injury
liability.
(See Pl.’s Mem. in Opp’n at 13-14 (citing Hiett v.
Lake Barcroft Cmty. Ass’n, Inc., 418 S.E.2d 894 (Va. 1992).)
17
Furthermore, Plaintiff argues the Agreements did not inform
Karras of the risks of Defendants’ negligence.
(Id. at 14-15.)
For the following reasons, the Court concludes that the evidence
presented does not establish that Karras assumed the risk of
Defendants’ negligence as a matter of law.
The shortcoming in Defendants’ evidence is that it
demonstrates Karras knew the general risks of scuba diving, but
not that she fully appreciated the risk of diving in conditions
allegedly made more dangerous by Defendants’ negligence.
Plaintiff has alleged many forms of negligence that Defendant
does not contest at this stage, including: negligently training
and supervising Splash Dive Center employees; inadequately
supervising the dive; failing to rescue; rendering negligent
care after Karras was removed from the lake; and providing an
insufficient number of dive instructors.
Opp’n at 14-15.)
(See Pl.’s Mem. in
These acts of negligence allegedly exacerbated
the inherent risks of scuba diving.
Karras must have fully
appreciated and voluntarily encountered these heightened risks
for her claim to be barred.
See Amusement Slide Corp., 232
S.E.2d at 820 (looking to specific negligence alleged to have
caused injury).
Based on the evidence presented, it is
genuinely disputed whether she appreciated those risks.
The Agreements Karras signed are evidence of the risks
she knew before participating in the dive, but they are not
18
conclusive.
Virginia public policy will not permit the Court to
view these Agreements as decisive evidence that Karras expressly
assumed the risk of Defendants’ negligence.
In Hiett v. Lake
Barcroft Community Ass’n, Inc., the Virginia Supreme Court ruled
that an entry form in which a triathlete purported to “release
and forever discharge any and all rights and claims for damages”
was void as against public policy.
1992).
418 S.E.2d 894, 895 (Va.
This policy extended from 100 years of Virginia
precedent establishing that “provisions for release from
liability for personal injury which may be caused by future acts
of negligence are prohibited ‘universally.’”
Id. at 896
(quoting Johnson’s Adm’x v. Richmond & Danville R.R. Co., 11
S.E. 829 (Va. 1890)).
As in Hiett, the Agreements in this case attempt to
release Defendants from liability for personal injury resulting
from their future acts of negligence.
In relevant part, the
Agreements state the following:
I understand and agree that neither my
instructor(s), . . . the facility through
which I receive my instruction, . . . nor
PADI Americas, Inc., . . . may be held
liable or responsible in any way for any
injury death or other damages to me, my
family, estate, heirs or assigns that may
occur as a result of my participation in
this diving program or as a result of the
negligence of any party, including the
Released Parties, whether passive or active.
19
In
consideration
of
being
allowed
to
participate in this course . . . I hereby
personally assume all risks of this program,
whether foreseen or unforeseen, that may
befall me while I am a participant in this
program including, but not limited to, the
academics, confined water and/or open water
activities.
. . . .
I
Eena
Sighn/Thomas
Karras,
BY
THIS
INSTRUMENT AGREE TO EXEMPT AND RELEASE MY
INSTRUCTORS,
All Splash Dive Center Instructors and
Staff, THE FACILITY THROUGH WHICH I RECEIVE
MY INSTRUCTION,
Splash Dive Center, AND PADI AMERICAS, INC.
AND ALL RELATED ENTITIES 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.
(SOF ¶ 4.)
This Court recognizes that some state courts have
found nearly identical contract language to be conclusive
evidence of a scuba diver’s assumption of the risk of death
during a diving course.6
In those states, however, public policy
6
See, e.g., Boyce v. West, 862 P.2d 592, 598 (Wash. Ct.
App. 1993) (“Mr. Boyce’s express assumption of all risks
associated with his enrollment in the scuba diving course bars a
claim for recovery.”); Mann v. Wetter, 785 P.2d 1064, 1066 (Or.
Ct. App. 1990) (affirming partial summary judgment in scuba
negligence case due to release agreement); Madison v. Superior
Court, 203 Cal. App. 3d 589, 600-02 (Cal. Ct. App. 1988)
(finding defendant expressly assumed risk of “[t]he negligence
of the defendants in failing adequately to supervise” during
scuba course through signed waiver); see also Marshall v. Blue
Springs Corp., 641 N.E.2d 92, 98 (Ind. Ct. App. 1994) (finding
20
did not prohibit a defendant from limiting liability for his own
negligence.7
In Virginia, by contrast, public policy voids the
release provisions of these agreements.
To interpret the
Agreements as conclusively establishing Karras’ express
assumption of the risk would conflict with this policy.
Although parts of the Agreements are void, this Court
interprets Virginia policy to permit the admission of other
parts of the Agreements as evidence of Karras’ knowledge of the
dangers of scuba diving.
At least one other court has admitted
a similar agreement as evidence of assumption of risk, despite
the Hiett public policy.
See Poston v. Skewes, No. 2:00-cv-129,
2001 WL 1478661 (W.D. Va. Nov. 21, 2001), aff’d, 49 F. App’x 404
(4th Cir. 2002).
In Poston, a hunter sought damages for
injuries he suffered as a passenger in a vehicle that crashed
into a ditch on a private hunting reserve.
Id. at *3.
Prior to
getting into the vehicle, the hunter signed an agreement in
which he released defendants from any claims of future
waiver released defendant from liability for plaintiff’s
slipping on dock during scuba class).
7
See Boyce, 862 P.2d at 597 (“Upholding the release of
Gonzaga does not violate public policy.”); Mann, 785 P.2d at
1066 (“[T]here are no public policy considerations that prevent
a diving school from limiting liability for its own
negligence.”); Madison, 203 Cal. App. 3d at 598 (“[W]e perceive
of no reason why Ken could not validly execute such a broad
agreement.”); Marshall, 641 N.E.2d at 95 (“As a general rule,
parties are permitted to agree in advance that one is under no
obligation of care for the benefit of the other, and shall not
be liable for the consequences of conduct which would otherwise
be negligent.”).
21
negligence.
Id. at *6 n.3.
The agreement also stated that the
hunter assumed all risks, including the dangers of “traversing
plowed or cultivated fields . . . [or] ditches . . . . [and]
com[ing] into contact with . . . holes in the ground and other
obstructions or hazards which may or may not be easily seen.”
Id. at *6.
The Poston court interpreted Hiett to allow the
agreement into evidence, but only after redacting the language
purporting to waive defendant’s liability.
Id. at *6 n.3.
In another post-Hiett case, Haga v. L.A.P Care
Services, Inc., the court considered whether to admit into
evidence an agreement describing the terms of admission to an
adult-care home.
No. 1:01cv105, 2002 WL 1754485, at *3 (W.D.
Va. July 29, 2002).
The agreement contained a “provision
arguably waiving any future negligence by the defendant” that
was void under Hiett.
Id.
Because the waiver “may be relevant
to the duties of the defendant,” however, the court admitted a
redacted copy of the waiver into evidence.
Id.
These post-
Hiett cases indicate that an agreement with void releases may
still be admissible as evidence for an alternative legal
purpose.
The Hiett decision itself also supports this
conclusion.
While reviewing Virginia’s history of cases
discussing waivers, the Hiett court discussed the case of Nido
v. Ocean Owners’ Council, 378 S.E.2d 837 (Va. 1989).
22
See Hiett,
244 Va. at 195 (referencing Nido).
In Nido, the Virginia
Supreme Court enforced a release of property-damage liability,
even though the same contractual sentence also waived personalinjury claims.
Nido, 378 S.E.2d at 838.
Additionally, when
considering the breadth of Hiett, the Virginia Supreme Court has
invoked the principle that “courts are adverse to holding
contracts unenforceable on the ground of public policy unless
their illegality is clear and certain.”
Estes Express Lines,
Inc. v. Chopper Exp., Inc., 641 S.E.2d 476, 478 (Va. 2007).
In
light of these cases and policies, the Court concludes that
parts of the Agreements are admissible as evidence of what
Karras knew about the dangers of scuba diving.
Having determined that parts of the Agreements are
admissible, the next question is which parts.
It is not
presently necessary for the Court to parse each line of the
Agreements to separate the permissible language from the void.8
It suffices to note that the Court’s admission of these
Agreements will be guided by the dual concerns motivating
Hiett’s prohibition of personal-injury liability waivers: (1)
those waivers bar a party suffering personal injury “from
seeking recovery from the tortfeasor”; and (2) may diminish a
released party’s “motivation to exercise ordinary care to
8
The Court will rule on evidentiary motions regarding
the Agreements as this case proceeds toward trial.
23
prevent harm to the releasing party . . . because the
possibility of legal liability is removed.”
Lines, 641 S.E.2d at 479.
Estes Express
These policies indicate that language
purporting to assume the risk of future negligence is not
consistent with Hiett, while language discussing the general
risks inherent in an activity is not problematic.
Thus, for the
purpose of this summary judgment motion, the Court views the
Agreements as evidence that Karras knew scuba diving was
“physically strenuous” and could lead to panic, heart attack,
hyperventilation, or drowning.9
The additional evidence Defendants rely upon to prove
Karras assumed the risk of drowning includes the PADI
instructional course and Karras’ prior dives.
Like the
Agreements, the PADI classes reinforced the general risks of
diving.
Those classes, however, did not teach Karras anything
about diving under the dangerous conditions that Defendants’
negligence allegedly created at Lake Rawlings.
Hays was not the
instructor of the classroom or confined-dive sessions and those
sessions occurred at times and locations different from the
9
The Agreement stated, in part, “I also 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, drowning or any other cause, that I expressly
assume the risk of said injuries . . . .” (SOF ¶ 4.)
24
open-water dives.
In sum, the Agreements and PADI course
informed Karras of only the inherent risks of scuba diving.
Furthermore, there is a genuine dispute as to what
Karras’ learned about Defendants’ alleged negligence during her
dives at Lake Rawlings.
Repeated and voluntary exposure to the
same risk is strong evidence that a plaintiff assumed that risk.
See Burns v. Washington Metro. Area Transit Autho., No. 1:12-cv123, 2012 WL 2878250, at *2 (E.D. Va. 2012), aff’d, 503 F. App’x
214 (4th Cir. 2013) (granting summary judgment on assumption of
risk, in part, because plaintiff used same icy staircase three
days in a row before slipping); Rhea v. Horn-Keen Corp., 582 F.
Supp. 687, 692 (W.D. Va. 1984) (granting summary judgment, in
part, because plaintiff assumed risk of racetrack’s negligence
by previously racing on same track and signing assumption of
risk form).
Defendants in this case, however, have not
sufficiently shown that the same allegedly negligent conditions
that caused Karras’ death on Sunday existed during the dives on
Saturday.
A reasonable juror could conclude from the evidence
in this case that Hays’ supervision on Saturday and during the
beginning of the Sunday dive was not negligent at all.
On the
second Saturday dive, Karras once panicked and swam to the
surface under her own power.
Her dive buddy and Hays soon
joined Karras at the surface to check on her condition.
Furthermore, on Sunday, Hays once prevented Karras from sinking
25
down a ledge by reaching out and inflating her buoyancy control
device.
(SOF ¶ 34.)
These facts could lead a reasonable jury
to conclude that Karras actually felt well supervised under
Hays’ care, rather than exposed to the increased risks that
allegedly caused her death.
Thus, there remains a genuine
factual dispute as to what risks Karras fully appreciated before
she entered the water on that tragic Sunday.
In conclusion, genuine factual disputes remain as to
whether Karras assumed the risk of drowning due to Defendants’
negligence and whether Defendants’ negligence proximately caused
Karras’ death.
Summary judgment is not a proper method for
resolving those disputes.
IV.
Conclusion
For the reasons set forth above, the Court will deny
Defendants’ Motion for Summary Judgment.
An appropriate order will follow.
October 8, 2015
Alexandria, Virginia
/s/
James C. Cacheris
UNITED STATES DISTRICT COURT JUDGE
26
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