Olivelli v. Sappo Corp., Inc., No. CIV. 99-2162(SEC).

• Decision Date: 25 September 2002
• Docket Number: No. CIV. 99-2162(SEC).
• Parties: Paul OLIVELLI, et al. Plaintiffs v. SAPPO CORPORATION, INC., et al. Defendants
• Court: U.S. District Court — District of Puerto Rico

225 F.Supp.2d 109

Paul OLIVELLI, et al. Plaintiffs v. SAPPO CORPORATION, INC., et al. Defendants

No. CIV. 99-2162(SEC).

United States District Court, D. Puerto Rico.

September 25, 2002.

Victor L. Marcello, Esq., Talbot, Carmouche & Marcello, González, LA, Lysette A. Morales-Vidal, Esq., Caguas, Richard Schell-Asad, Esq., Troncoso & Becker, San Juan, for Plaintiffs.

Roberto Marquez-Sánchez Esq., Law Offices Benjamín Acosta Jr., Francisco Colón Pagán, Esq., Colón, Colón & Martínez, San Juan, Mark A. Hruska, Boca Ratón, FL, for Defendants.

OPINION AND ORDER

CASELLAS, District Judge.

Pending is Sappo Corporation, Concho Corporation, Inc. and Chuck Rew's ("Defendants") motion for summary judgment. (Docket # 32). Paul Olivelli, John Paul Olivelli and Nicole Olivelli have filed an opposition to Defendants' motion for summary judgment, (Docket # 34), and Defendants have filed a reply (Docket # 35). After careful consideration of the motion, opposition, reply and applicable law, Defendants' motion is GRANTED.

Background

The Court's subject matter jurisdiction is invoked pursuant to 28 U.S.C. § 1332 (diversity of citizenship) as Plaintiffs bring a claim against Defendants for the wrongful death of Mary Jean Olivelli. Although our subject matter jurisdiction is invoked based on diversity of citizenship, Plaintiffs allege that because this case arises from an alleged maritime tort, the principles of admiralty law should govern.

The events alleged in the above-captioned matter took place off the coast of Guanica, Puerto Rico on October 22, 1997. On that day, Mary Jean Olivelli died during a tragic scuba diving excursion. At the time of her death, Ms. Olivelli was a student in an open-water scuba class taught by Defendant Chuck Rew at the Copa Marina Beach Resort. The Copa Marina Beach Resort is owned by Defendant Sappo Corporation, Inc. and managed by Defendant Concho Corporation, Inc.

Prior to Ms. Olivelli's death, she and her husband, Plaintiff Paul Olivelli, had enrolled in a scuba certification class offered by Paula German at "The Diver's Way Dive Shop" in Long Island, New York. Ms. German provided the Olivellis with the requisite academic and pool training necessary for certification. Thereafter, the Olivellis planned four open-water dives in Puerto Rico. These dives were to take place under Defendant Chuck Rew's supervision.

Before enrolling in the scuba classes in New York, Ms. Olivelli executed a standard "Liability Release and Express Assumption of Risk" form in favor of Ms. German, the Diver's Way Dive Shop, and International PADI, Inc. Upon their arrival in Puerto Rico, and before their dives with Defendant Rew, the Olivellis executed a similar release agreement in favor of Chuck Rew, the Copa Marina, International PADI, Inc., and all other related entities, for their own negligence. In this agreement, the Olivellis also agreed to assume all risks associated with the dives, whether foreseen or unforeseen.¹

The PADI open-water certification requires a candidate to perform four open water dives. The Olivellis performed their first three dives under Defendant Rew's supervision without incident. However, on their fourth and final dive, the tragic events that gave rise to this litigation took place. On that day, Ms. Olivelli completed her final dive and ascended to the surface with her instructor. She then swam to the dive platform, which is connected to the dive vessel. After removing her weight belt and buoyancy compensator vest, she hoisted herself onto the dive boat swim platform and suddenly collapsed.

Ms. Olivelli was transported back to shore, about one-mile from the dive site. At the shore, an Emergency Medical Technician team awaited the boat's arrival. Upon their arrival, Ms. Olivelli was transported to a clinic in Guanica, where she was ultimately pronounced dead. Dr. Yocasta Brugal determined that the cause of Ms. Olivelli's death was an air embolism.

Plaintiffs allege that the death of Ms. Olivelli was caused by the negligent acts of the Defendants, which are summarized as follows: (1) that they failed to adequately devise a dive plan, (2) that they failed to adequately supervise the dive, (3) that they failed to provide adequate first-aid on the vessel, and (4) that the boat was not functioning at full capacity. Defendants do not challenge the veracity of Plaintiffs' factual allegations in their motion for summary judgment. Instead, they claim that Plaintiffs' have waived any and all claims related to Ms. Olivelli's death through the execution of the "Liability Release and Express Assumption of Risk," dated October 20, 1997.

Summary Judgment Standard

Fed.R.Civ.P. 56(b) provides that: "A party against whom a claim ... is asserted ... may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part [of the claims asserted against him/her]." The Court may grant the movant's motion for summary judgment when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986); NASCO, Inc. v. Public Storage, Inc., 29 F.3d 28 (1st Cir.1994). "The principal judicial inquiry required by Rule 56 is whether a genuine issue of material fact exists." Wright, Miller & Kane, Federal Practice and Procedure: Civil 3d § 2725, p. 401.

In this regard, the First Circuit Court of Appeals has noted that for a dispute to be "genuine," there must be sufficient evidence to permit a reasonable trier of fact to resolve the issue in favor of the non-moving party. U.S. v. One Parcel of Real Property, 960 F.2d 200, 204 (1st Cir.1992); see also Boston Athletic Assn. v. Sullivan, 867 F.2d 22, 24 (1st Cir.1989); Medina-Muñoz v. R.J. Reynolds Tobacco, 896 F.2d 5, 8 (1st Cir.1990) ("[a] `genuine' issue is one that must be decided at trial because the evidence, viewed in the light most favorable to the nonmovant, would permit a rational factfinder to resolve the issue in favor of either party.") (citations omitted).

By like token, "material" means that the fact is one that might affect the outcome of the suit under the governing law. Morris v. Government Development Bank of Puerto Rico, 27 F.3d 746, 748 (1st Cir. 1994). "A fact is material if it tends to resolve any of the issues that have been properly raised by the parties." Wright, Miller & Kane, supra, § 2725 at p. 419. "Not every genuine factual conflict necessitates a trial. It is only when a disputed fact has the potential to change the outcome of the suit under the governing law if found favorably to the nonmovant that the materiality hurdle is cleared." Martinez v. Colón, 54 F.3d 980, 983-984 (1st Cir. 1995).

In addition, when determining whether to grant summary judgment, the Court may not weigh the evidence. Casas Office Machines, Inc. v. Mita Copystar America, Inc., 42 F.3d 668 (1st Cir.1994). Summary judgment "admits of no room for credibility determinations, not room for the measured weighing of conflicting evidence such as the trial process entails." Id. (citing Greenburg v. Puerto Rico Maritime Shipping Authority, 835 F.2d 932, 936 (1st Cir.1987)). Accordingly, if the facts permit more than one reasonable inference, the court on summary judgment may not adopt the inference least favorable to the non-moving party. Casas Office Machines, 42 F.3d at 684.

While the moving party has the burden of initially establishing that there is "an absence of evidence to support the non-moving party's case", Maldonado-Denis v. Castillo-Rodríguez, 23 F.3d 576, 581 (1st Cir.1994); the nonmovant has a "corresponding obligation to offer the court more than steamy rhetoric and bare conclusions." Lawton v. State Mutual Life Assurance Company of America, 101 F.3d 218, 223 (1st Cir.1996). Furthermore, "the nonmovant must produce specific facts, in suitable evidentiary form' sufficient to limn a trialworthy issue .... Failure to do so allows the summary judgment engine to operate at full throttle." Id.; see also Kelly v. United States, 924 F.2d 355, 358 (1st Cir.1991) (warning that "the decision to sit idly by and allow the summary judgment proponent to configure the record is likely to prove fraught with consequence."); Medina-Muñoz, 896 F.2d at 8, (quoting Mack v. Great Atlantic and Pacific Tea Co., 871 F.2d 179, 181 (1st Cir. 1989)) (holding that "[t]he evidence illustrating the factual controversy cannot be conjectural or problematic; it must have substance in the sense that it limns differing versions of the truth which a factfinder must resolve.")

Local Rule 311(12), moreover, requires the moving party to "file annexed to the motion a separate, short, and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried ...." Unless the non-moving party controverts this statement, all the material facts set forth therein "shall be deemed to be admitted." Id. This is the so-called "anti-ferret rule." See, e.g., Orbi, S.A. v. Calvesbert & Brown, 20 F.Supp.2d 289, 291 (D.P.R.1998). While failure to comply with this rule does not automatically warrant the granting of summary judgment, "it launches the non-movant's case down the road toward an early dismissal." Tavárez v. Champion Products, Inc., 903 F.Supp. 268, 270 (D.P.R.1995).

Applicable Law/Analysis

Although Plaintiffs' original complaint alleges diversity jurisdiction, pursuant to 28 U.S.C. § 1332, in their first amending petition Plaintiffs aver that since this controversy arises from a maritime tort, the Court has admiralty or maritime jurisdiction, pursuant to 28 U.S.C. § 1333. The question presented is not whether the Court has subject matter jurisdiction over this matter, because we agree that this case...