Borden v. Phillips

• Decision Date: 16 February 2000
• Docket Number: No. 1D98-3361.,1D98-3361.
• Parties: Carol H. BORDEN, as Personal Representative of the Estate of Kenneth Earl Borden, deceased, Appellant, v. Donna Lee PHILLIPS, individually and d/b/a Manta Ray Divers Co-op; Timothy Franklin Phillips, individually and d/b/a Manta Ray Divers Co-op; International Padi, Inc., on information and belief a California corporation doing business in Florida, Appellees.
• Court: Florida District Court of Appeals

752 So.2d 69

Carol H. BORDEN, as Personal Representative of the Estate of Kenneth Earl Borden, deceased, Appellant, v. Donna Lee PHILLIPS, individually and d/b/a Manta Ray Divers Co-op; Timothy Franklin Phillips, individually and d/b/a Manta Ray Divers Co-op; International Padi, Inc., on information and belief a California corporation doing business in Florida, Appellees.

No. 1D98-3361.

District Court of Appeal of Florida, First District.

February 16, 2000.

Michael J. Pugh of Levin and Tannenbaum, P.A., Sarasota; and John T. O'Connell, Pro Hac Vice, of John T. O'Connell & Associates, P.C., Boston, Massachusetts, Attorneys for Appellant.

Mark A. Hruska, Boca Raton; and John Beranek of Ausley & McMullen, Tallahassee, Attorneys for Appellees.

BOOTH, J.

The personal representative of the estate of Kenneth Borden (the "decedent") appeals the trial court's Order Granting Final Summary Judgment in a wrongful death action brought against Appellees. We affirm.

The pertinent facts of this tragic accident, construed in a light most favorable to Appellant, are as follows. On April 1, 1995, decedent died while participating in a PADI Advanced Open Water course taught by Appellee Donna Phillips, approximately one mile offshore from Destin, Florida. Participants in the diving class were transported by a vessel known as the Manta Ray, owned and captained by Appellee Timothy Phillips. Both Donna Phillips and Timothy Phillips were doing business as "Manta Ray Divers Coop." Timothy Phillips was a PADI ("Professional Association of Diving Instructors") certified divemaster. International PADI, Inc. trained scuba diving instructors to certify scuba students, and had agreements with businesses such as the Manta Ray Divers Co-op to advertise and represent to the public that it was knowledgeable in scuba diving matters. Before the dive both Donna Phillips and Timothy Phillips briefed decedent that if he surfaced and needed assistance, he should wave to Captain Phillips. If he could not reach the boat, he should swim to and use the "tag line" (a rope tied to the vessel with a flotation ball on the end) to pull himself to the boat.

Before participating in this class, decedent executed a document entitled "PADI Standard Safe Diving Practices Statement of Understanding" and "LIABILITY RELEASE AND EXPRESS ASSUMPTION OF RISK" purporting to release Appellees from their own negligence.

During the dive, while in the water, decedent became separated from the Manta Ray, and he swam toward the boat's floating tag line. Captain Phillips saw decedent wave his hand, but interpreted the wave as an "OK" signal. Phillips detached the tag line from the Manta Ray. When decedent reached the tag line, he was unable to pull himself into the boat. When the Manta Ray reached decedent, he was found unresponsive, floating, with his hand wrapped in the tag line. An autopsy found the cause of death was drowning.

Appellant claimed 46 U.S.C.App. section 183c, a federal admiralty statute voiding certain releases between owners of vessels transporting passengers, applied to invalidate the release.¹ The trial court entered Final Summary Judgment in favor of Appellees, finding that section 183c did not apply. The trial court also found the release was valid under Florida law. Appellant appeals these findings.

The threshold question concerning the validity of the release is whether admiralty law applies to the facts of this case. This is a question of law, and therefore we review the trial court's decision de novo. Menendez v. The Palms West Condominium Ass'n, Inc., 736 So.2d 58 (Fla. 1st DCA 1999).

State courts have concurrent jurisdiction with federal courts over admiralty cases under the savings to suitors clause. 28 U.S.C. § 1333(1). To establish admiralty jurisdiction, the court considers a two-prong test. First, the activity from which the claim arises must satisfy a location test, i.e., the tort must have occurred on navigable water or the injury suffered on land must have been caused by a vessel on navigable water; the second prong is whether the activity has a sufficient connection with maritime activity. This second prong requires an assessment whether, given the general features of the type of accident, the "incident has a potentially disruptive impact on maritime commerce" and whether the "general character" of the "activity giving rise to the incident" shows a "substantial relationship to traditional maritime activity." Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 532-534, 115 S.Ct. 1043, 1048, 130 L.Ed.2d 1024 (1995). In determining whether special admiralty rules apply, the court must inquire whether the defendant's activity on navigable waters is closely related to activity traditionally subject to admiralty law. Navigation of boats in navigable waters falls within this substantial relationship, as does the storing of boats at a marina. However, the relationship of activities such as swimming or flying an airplane over water is too attenuated. Id., 513 U.S. at 540, 115 S.Ct. at 1051.

The Manta Ray was a vessel transporting passengers for a scuba diving excursion in navigable waters, and therefore 46 U.S.C. section 183c applies to its voyage. See Keys Jet Ski v. Kays, 893 F.2d 1225 (11th Cir.1990)(pleasure craft such as jet skis are considered vessels under admiralty law); 1 U.S.C. § 3. The question arises, therefore, whether decedent's activity once he departed the Manta Ray for scuba diving falls within admiralty jurisdiction, thereby voiding the release.

No reported Florida cases have addressed this issue. The only published opinion we have found concerning the applicability of section 183c to scuba diving is In re Pacific Adventures, Inc., 5 F.Supp.2d 874 (D.Haw.1998). In Pacific Adventures, the plaintiff's leg became entangled with the propeller of a vessel while she was diving. The court held that admiralty law applied to the incident, and section 183c voided a release the plaintiff signed before the dive. The district court expressly stated that the plaintiff's injury arose from her "contact with a moving vessel." Id. at 880. However, had her injuries been "related solely to scuba diving and had no relationship to the operation or maintenance of a vessel, then there would be no admiralty jurisdiction and Section 183c would not apply." Id. n. 5 at 880 (citation omitted).

Whether the decedent's death was related to the operation or maintenance of the Manta Ray, or solely to scuba diving, is a close question. Unlike an incident in which a passenger falls overboard or suffers injuries from negligent maintenance, the decedent intentionally departed the Manta Ray to dive. This activity, scuba diving, was not dependent on his passage in the Manta Ray. Further, decedent ceased being a passenger when he entered the water. That the crew was allegedly negligent when it failed to respond to decedent's signal did not involve the operation or maintenance of the Manta Ray, but was related solely to the activity of scuba diving, and therefore admiralty law does not apply to invalidate the release.

We are guided in this decision by the United States Supreme Court's rationale in Bisso v. Inland Waterways Corporation, 349 U.S. 85, 75 S.Ct. 629, 99 L.Ed. 911 (1955). In Bisso, the Court addressed a towage contract exempting a towboat owner from its own negligence. Pointing to judicial history and public policy, the Court applied a longstanding general rule used by courts and legislatures to prevent enforcement of release-from-negligence contracts. "The two main reasons for the creation and application of the rule have been (1) to discourage negligence by making wrongdoers pay damages, and (2) to protect those in need of goods or services from being overreached by others who have power to drive hard bargains." Id., 349 U.S. at 91, 75 S.Ct. at 632-633. Here, Appellees were not overreaching; decedent voluntarily contracted with Appellees and boarded the Manta Ray to scuba dive, exposing himself to its associated risks. His death had no relationship to the operation or maintenance of the Manta Ray, and therefore 46 U.S.C.App. section 183c does not invalidate the release.²

Having found that the release is not voided by 46 U.S.C.App. section 183c, we now must examine whether the release validly released Appellees from liability for their own negligence under Florida law.

The language of the release is clear and unambiguous, reflecting the decedent's assumption of the risks inherent in scuba diving and his intent to release Appellees from all liability, including any liability resulting from their own negligence. Although viewed with disfavor under Florida law, such exculpatory clauses are valid and enforceable when clear and unequivocal. Theis v. J & J Racing Promotions, 571 So.2d 92, 94 (Fla. 2d DCA 1990), rev. denied, 581 So.2d 168 (Fla.1991). The release expressly states that the decedent "understands and agrees" that none of the "Released Parties" (Appellees) "may be held liable or responsible in any way for any injury, death, or other damages to me [decedent] or my family, heirs, or assigns that may occur as a result of my [decedent's] participation in this diving class or as the result of the negligence of any party, including the Released Parties, whether passive or active." The release goes on to state that the decedent intends to exempt and release Appellees from all liability or responsibility whatsoever ... "HOWEVER CAUSED, INCLUDING, BUT NOT LIMITED TO, THE NEGLIGENCE OF THE RELEASED PARTIES, WHETHER PASSIVE OR ACTIVE."

This case concerns contractual assumption of risks, not implied assumption of risks associated with some activities. Blackburn v. Dorta, 348 So.2d 287 (Fla. 1977). The release is a classic example of the type of contractual release...