Scuba Negligence - As she snorkeled near the shore in the Bahamas, plaintiff was struck by a boater, later losing part of her leg; her liability theory implicated her Birmingham divemaster for failing to protect and warn her of the danger

Ellison v. S.F. Dive Center, 99-2074

Plaintiff: Charles H. Boohaker, Roger Burton, P.C., Birmingham

Defense: Mark A. Hruska, Boca Raton and Labella S. Alvis, Christian & Small, Birmingham

Verdict: Defense verdict

Circuit: Jefferson, 8-21-03

Judge: Robert S. Vance

On 7-3-98, Wendi Ellison, age 32 and a radiology nurse, traveled to Bimini in the Bahamas. With her fiancé, she was a part of a scuba group organized by Thomas Spicer and his company, S.F. Dive Center. Operating out of Birmingham, Spicer organized dive trips to Bimini. Just after arriving at Ellison, she was overcome by the oppressive Bahamian heat.

She elected to go snorkeling just off shore. This activity was not supervised by Spicer, nor were any dive flags placed. A moment later, a boater from Miami, Dennis Marden, approached the scene. In violation of common sense and Bahamian law, Marden piloted near the shore and at high speed.

An instant later, he crashed into Ellison. She suffered a serious leg injury. Airlifted to a hospital in Miami, the leg was later amputated four inches below the knee. Ellison now utilizes a prosthesis.

In this lawsuit, Ellison blamed her injuries on Spicer’s negligence. Namely, per her dive expert, Robert Millott, Gainesville, FL, she developed that Spicer had a 24-7 duty for her safety on the trip. Notably, while permitting Ellison to snorkel, no dive flags were placed. This was an especially significant deviation as Ellison’s location, some 30 feet off shore, while appearing as an innocuous snorkeling area, was in fact within a heavily-traveled channel. This condition was exacerbated by holiday traffic, Ellison noting that while Spicer knew the prevailing conditions, she did not.

Ellison countered the notion of contributory negligence, namely her experience as a diver, pointing out that this was her first trip to Bimini and it was Spicer who had superior knowledge about the dangerous condition. Plaintiff’s incurred medicals were $106,553. If she prevailed, she was obligated to repay an insurer some $65,000.

Spicer and his company defended the case and focused on two key issues, (1) the reckless conduct of Marden, and (2) plaintiff’s own contributory fault. To Marden’s duties, it was noted that he violated Bahamian law, recklessly driving at high speed within 200 feet of shore. Beyond Marden, Spicer developed that Ellison was an experienced diver who assumed the risk, making a choice to snorkel without a dive flag. As importantly, Spicer noted that when the incident occurred, Ellison was not actually on dive -- instead, she was on an unscheduled snorkeling expedition without expecting or receiving supervision. A defense liability expert was John Stewart, Palm Beach, FL.

The verdict in this case was for Spicer and his company, awarding Ellison nothing. A defense judgment followed. Ellison has since moved for JNOV, arguing, (1) it was error to introduce evidence she has sued the tortfeasor, (2) while Spicer could discuss his financial plight, Ellison was forbidden from introducing proof of insurance, and (3) the verdict was contrary to the evidence. The motion was pending when reviewed by the AJVR.