Rasmussen v. Bendotti

• Decision Date: 21 August 2001
• Docket Number: No. 19464-7-III.,19464-7-III.
• Citation: 29 P.3d 56,107 Wash.App. 947
• Court: Washington Court of Appeals
• Parties: Cully C. RASMUSSEN, as Personal Representative of the Estate of Bonny Jo Bendotti, Deceased; Cully C. Rasmussen, Adam T. Rasmussen and Brandy Jo Rasmussen, Children of Bonny Jo Bendotti, Deceased, Appellants, v. Eugene L. BENDOTTI, Respondent and Cross-Appellant.

29 P.3d 56

107 Wash.App. 947

Cully C. RASMUSSEN, as Personal Representative of the Estate of Bonny Jo Bendotti, Deceased; Cully C. Rasmussen, Adam T. Rasmussen and Brandy Jo Rasmussen, Children of Bonny Jo Bendotti, Deceased, Appellants, v. Eugene L. BENDOTTI, Respondent and Cross-Appellant.

No. 19464-7-III.

Court of Appeals of Washington, Division 3, Panel One.

August 21, 2001.

Douglas J. Takasugi, Jeffers, Danielson, Sonn & Aylward, Wenatchee, for Appellants.

Thomas F. O'Connell, Davis, Arneil, Dorsey, Right, Wenatchee, for Respondent and Cross-Appellant.

SWEENEY, J.

To hold a defendant liable for negligence, the plaintiff must show that the defendant proximately caused the plaintiff's injury. Crowe v. Gaston, 134 Wash.2d 509, 514, 951 P.2d 1118 (1998). Proximate cause is generally a question of fact. Hertog v. City of Seattle, 138 Wash.2d 265, 275, 979 P.2d 400 (1999). Here, the trial court, sitting as the fact finder, found that any negligence on the part of Eugene Bendotti was "too attenuated" from Bonny Jo Bendotti's death to hold Gene legally liable. Gene was Bonny's scuba diving buddy. He failed to properly attach a power inflator to his buoyancy compensator. This required an emergency ascent. Bonny then drowned after her equipment became entangled in a rope. We conclude that the trial court's finding is adequately supported by the evidence, and affirm the judgment dismissing Cully, Adam, and Brandy Jo Rasmussen's wrongful death suit.

FACTS

Our factual summary here follows the trial court's unchallenged findings of fact, including those denominated as conclusions of law. Hagemann v. Worth, 56 Wash.App. 85, 89, 782 P.2d 1072 (1989). We refer to Mr. and Mrs. Bendotti as Gene and Bonny. We intend no disrespect by doing so. We use their first names simply for clarity and ease of reference.

Bonny and Gene were married in 1990. They got interested in scuba diving and completed the necessary scuba certification in April 1996. Their training included an open water dive course and an advanced open water dive course.

In the fall of 1996, the Bendottis were asked to help recover a snowmobile from Lake Wenatchee. They agreed to help. On October 4, they made one or two dives, located the snowmobile in approximately 100 feet of water, and marked it with a 50-foot line.

The Bendottis returned to Lake Wenatchee on November 2. At first they were unable to locate the snowmobile or marker line. They located the snowmobile during the second dive and marked it with a longer line and buoy. They then broke for lunch and refilled their air tanks. After the third dive, the Bendottis and others with them decided to try to attach a line to the snowmobile to drag it from the lake. Both descended for their fourth dive.

Gene had, however, inadvertently failed to reconnect his power inflator to his buoyancy compensator. A power inflator inflates a buoyancy compensator which then allows the diver to rise to the surface. And "[b]ecause he and Bonny did not adequately perform buddy and self-equipment checks, it was not discovered." Clerk's Papers (CP) at 561. Once in the water, Gene discovered the equipment problem and immediately surfaced. Bonny, however, became entangled in a rope at the 40-foot level "perhaps while ascending herself." CP at 561. She was unable to disentangle herself and drowned.

Cully, Adam, and Brandy Jo Rasmussen are Bonny's children. They sued Gene on behalf of themselves and Bonny's estate. The court denied Gene's motion for summary judgment and heard the matter without a jury.

The court concluded that Gene owed a duty to Bonny as her scuba diving "buddy." Left unstated, but easily inferable given the court's other conclusions, is the finding that Gene breached that duty by failing to reconnect his power inflator. The court then goes on to conclude that because Gene's failure to reconnect his power inflator was an emergency, he acted as a reasonably prudent diver when he ditched his weight belt and ascended. It also concluded that Gene's duty to Bonny terminated because of this emergency. The court then held that the Rasmussens "failed to prove by a preponderance of the evidence any breach of duty by Gene to Bonny occurring prior to Gene facing his own personal emergency." CP at 562. The court dismissed the Rasmussens' claims with prejudice.

The Rasmussens moved for reconsideration. The court denied the motion, but supplemented its original conclusions of law. It concluded that both Gene and Bonny should have checked Gene's scuba equipment prior to their fourth dive. But their failure to do so placed only Gene at risk. In its supplemental conclusions, the court further reiterated that a diver's primary duty is to himself, or herself, and that Bonny became entangled only after Gene faced his own emergency. And Gene's duty to Bonny terminated once he faced his own emergency.

Finally, the court concluded that Gene's failure to attach his power inflator was "too attenuated" from Bonny's subsequent entanglement in the rope to hold him legally responsible for her death. CP at 435.

The Rasmussens appeal the judgment dismissing their claims. Gene appeals the denial of his pretrial motion for summary judgment.

ASSIGNMENTS OF ERROR

The Rasmussens assign error to a number of the court's conclusions of law. And those assignments of error delineate the issues before us.

The Rasmussens assign error to the following original conclusions of law, which we paraphrase:

• That Gene's legal duty to Bonny terminated when he was faced with his own emergency during the fourth dive. Conclusion of Law 4.

• The Rasmussens did not prove any breach of duty by Gene to Bonny prior to Gene facing his own personal emergency. Conclusion of Law 5. The Rasmussens assign error to the following supplemental conclusions of law, which we also paraphrase:

• Failure to perform equipment checks, their own and their buddy's, put Gene solely at risk. Supplemental Conclusion of Law 3.

• If Gene had improperly loaded a spear gun which discharged and struck Bonny, his conduct at the surface would have increased the risk to Bonny. But that did not occur. Supplemental Conclusion of Law 4.

• Gene's failure to check his equipment did not put Bonny at an increased risk of harm. Supplemental Conclusion of Law 5.

• When Gene surfaced, he acted reasonably and his duty to his dive buddy terminated. Supplemental Conclusion of Law 7.

• The connection between Gene's failure to attach his power inflator on the surface and Bonny's subsequent entanglement (and death) is too attenuated to hold Gene legally responsible. Supplemental Conclusion of Law 9.

• To hold Gene responsible would make him a guarantor of Bonny's safety. Supplemental Conclusion of Law 10.

From these assignments of error, the Rasmussens make four basic arguments:

(1) After concluding that Gene owed a duty of care to Bonny (a duty owed by all dive buddies), the court then inconsistently goes on to conclude that Gene did not breach that duty—despite the fact that Gene negligently failed to reconnect his power inflator and perform adequate equipment checks before the fourth dive, contrary to standard diving practices.

(2) After concluding that Gene owed a duty to Bonny, the court then goes on to conclude that that duty terminated when Gene was faced with his own emergency. The Rasmussens argue that the duty should not have terminated because the emergency Gene was responding to was one of his own making. Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wash.2d 188, 197, 668 P.2d 571 (1983); Pryor v. Safeway Stores, Inc., 196 Wash. 382, 387-88, 83 P.2d 241 (1938), overruled on other grounds by Blaak v. Davidson, 84 Wash.2d 882, 529 P.2d 1048 (1975)

.

(3) The court concluded that Gene's failure to perform a self-equipment check did not put Bonny at any increased risk of harm. The Rasmussens urge that if Gene had a duty, as the court found, then Bonny was certainly within the class of people that the duty was intended to protect.

(4) Finally, the court concluded that the connection between Gene's negligence and Bonny's death was too attenuated for the death to proximately flow from the breach of duty. Again, the Rasmussens argue that the very purpose of diving with a buddy, a standard obligatory diving practice, is so one diver is available to assist another who encounters difficulty underwater.

STANDARD OF REVIEW

The Rasmussens challenge only the court's conclusions of law. The findings of fact are therefore verities on appeal. Nordstrom Credit, Inc. v. Dep't of Revenue, 120 Wash.2d 935, 941, 845 P.2d 1331 (1993).

We review the court's conclusions of law by first determining whether the court applied the correct legal standard to the facts under consideration. Our review is de novo. See State v. Williams, 96 Wash.2d 215, 220, 634 P.2d 868 (1981)

(appellate court determines questions of law). Every conclusion of law, however, necessarily incorporates the factual determinations made by the court in arriving at the legal conclusion (or ultimate fact). See Universal Minerals, Inc. v. C.A. Hughes & Co., 669 F.2d 98, 101-02 (3d Cir.1981) (the logical flow is evidence to basic facts to ultimate facts). For example, the fact that a driver ran a red light is clearly a finding of fact and, therefore, a decision which would demand our deference. But the court's conclusion of law from that finding that the defendant ran the light and was therefore negligent would be a conclusion (running a red light is negligent), which we would review de novo.

To be more specific, and address the questions raised here, the question of whether Gene had a duty to Bonny as her diving buddy is a question of law which we review de novo. Hertog v. City of Seattle, 138 Wash.2d 265, 275, 979 P.2d 400 (1999). Likewise, the question of whether an emergency created by a breach of that duty (failure to check his equipment) terminated that duty to his buddy (Bonny) is also a question of law, which we...