Jim Porter: Sister sues for brother’s scuba diving accident and death | SierraSun.com

Jim Porter: Sister sues for brother’s scuba diving accident and death

Jim Porter
Special to the Sun

There is nothing worse than to personally watch a loved one being injured or killed as a result of someone else's fault, such as observing a relative die in a car crash.

Recognizing the emotional distress suffered from watching a family member being injured or dying in front of you, California has a doctrine known as Negligent Infliction of Emotional Distress, which allows recovery for emotional damages when someone closely related to the injury victim personally observes the incident.

SCUBA DIVING OFF CATALINA

Barbara Fortman was scuba diving off the coast of Catalina Island with her brother Robert Myers.

Robert was wearing a Catalyst 360 dry suit which came equipped with a low-pressure hose attached to a regulator.

A few minutes into the dive, Robert signaled to Barbara that he wanted to ascend. Barbara put a hand on her brother's arm to begin their ascent but despite kicking, they were not rising to the surface.

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Barbara stopped kicking and they sank to the ocean floor where Robert landed on his back. His eyes were wide open but he was not responsive.

Finally, Barbara started bringing her brother to the surface but he remained unresponsive and his regulator fell out of his mouth.

Upon arriving at the surface, she summoned help but her brother was pronounced dead at the Two Harbor's Dive Chamber. Barbara assumed he had a heart attack.

THE INVESTIGATION

The L.A. County Sheriff's Department investigated the scuba-diving accident. They found a misplaced internal "flow restriction insert" had become lodged in Myer's second stage regulator preventing him from getting enough air to breathe while under water. Clear liability.

SCUBA REGULATOR DEFECT

Barbara Fortman and Robert's heirs sued the manufacturer of the regulator.

Barbara claimed she had suffered emotional distress damages watching her brother drown.

Seems like a garden-variety negligent infliction of emotional distress suit. She watched her brother die through someone else's negligence and suffered severe emotional distress. What else do you need?

Understand that Barbara and her brother's heirs have a lawsuit for "wrongful death" and the damages each suffered as a result of the regulator manufacturer's negligence resulting in Robert's death, but the case today is about Barbara's unique emotional distress damages from personally watching the gruesome death of her brother.

PORTER'S SCUBA STORY

Allow me to digress and tell another Porter tale. My brother Paul and I, known for being frugal, were on a scuba dive trip.

We showed up with antiquated two-hose, two-stage regulators. We're Porters. I should have been suspicious when Paul was getting into the water with a rock.

I asked, "What's with the rock?" He said, "Sometimes the regulator stops – so I hit it with this rock." Then we got in the water.

Not unpredictably, Paul's regulator conked out while we were 70 feet down and we had to buddy-breathe back to the surface.

That was interesting. When the dive master took a closer look at our old two-hose regulators, he ceremoniously brought out a large hammer and smashed them to smithereens, than lent us newer, safer regulators.

EMOTIONAL DISTRESS

Here's the law on negligent infliction of emotional distress, right from the cases: "[A] plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress — a reaction beyond that which would be anticipated in a disinterested witness and which is not an abnormal response to the circumstances."

Barbara Fortman is closely related to Robert Myers, she suffered serious emotional distress, and she was at the scene at the time the incident occurred, so the only issue in this case was whether it mattered that Barbara did not know what caused her brother's death — other than drowning.

DEFENSE

Indeed, the regulator manufacturer claimed that under the law, while she may have seen her brother suffer injuries and death, Barbara could not have perceived that he was being injured by the company's product, so she did not meet the second requirement of negligent infliction of emotional distress ("is then aware that it is causing injury to the victim").

Barbara argued that her situation was like any other bystander case like where parents witness the death of their child in a traffic accident.

The Court of Appeal (3-0) ruled in favor of the scuba regulator manufacturer finding Barbara had no claim because she did not know the defective regulator caused her brother's death.

In my book, that is a fine line.

Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee, Tahoe City and Reno. He may be reached at porter@portersimon.com or http://www.portersimon.com.