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MURLEY v. DEEP EXPLORERS INC.

August 27, 2003

WILLIAM F. MURLEY, AS EXECUTOR/, ADMINISTRATOR OF THE ESTATE OF CHRISTOPHER, B. MURLEY, DECEASED, WILLIAM MURLEY, INDIVIDUALLY, MARY KATHERINE MURLEY AND MARYBETH BYRNE, PLAINTIFFS, -AGAINST- DEEP EXPLORERS, INC., DANIEL R. CROWELL, JENNIFER SAMULSKI, CINCINNATI DIVING CENTER, JOSEPH, P. JACKSON, JR., STEVEN BERNSTEIN, AND TECHNICAL DIVING INTERNATIONAL, DEFENDANTS


The opinion of the court was delivered by: Arthur Spatt, District Judge [ Page 2]

MEMORANDUM OF DECISION AND ORDER
This case involves the relatively new and dangerous sport of scuba diving/wreck examination and arises out of a tragic scuba diving accident in which Christopher B. Murley ("Murley) lost his life. Presently before the Court is a motion for summary judgment by the defendants Cincinnati Diving Center ("CDC"), Joseph P. Jackson, Jr. ("Jackson"), Steven Bernstein ("Bernstein"), and Technical Diving International ("TDI"). Joining in the motion for summary judgment are defendants Deep Explorers, Inc., Daniel R. Crowell ("Crowell"), and Jennifer Samulski ("Samulski") (collectively, the "defendants").

I. BACKGROUND

The following pertinent facts are undisputed unless otherwise indicated. The events alleged in this action took place off the coast of Montauk, New York on July 21, 1999. On that day, Murley died on the surface of the ocean waters during a highly advanced scuba diving excursion. Murley booked the expedition through CDC and received training and certifications from Jackson and TDI. Murley was transported to the dive site aboard the Seeker, which was owned and operated by Deep Explorers, Inc.

Murley suffered from hypertention and was a very large man, standing approximately 6'6" tall and weighing approximately 350 pounds. On February 14, [ Page 3]

1998, Murley attended his first scuba diving training class at CDC. The class was taught by Jackson and consisted of ten course "modules" over a period of approximately seven days. On March 22, 1998, after the completion of this program, Murley was issued a basic certification as an "open water" diver. Thereafter, Murley received a series of scuba training and certifications including, (1) PADI Open Water Certification; (2) PADI Advanced Open Water; (3) PADI Deep Diver; (4) TDI Nitrox; (5) NSS-CDS Cavern Diver; (6) NSS-CDS Intro to Cave Diving; (7) TDI Decompression Procedures; and (8) TDI Extended Range and Trimix. The training and certifications were primarily from CDC under the supervision of Jackson and TDI, a scuba diving certification agency.

Also, on or about July 1998, Murley registered for an advanced scuba diving training course known as the Advanced Trimix. According to the plaintiffs, Murley did not meet the minimum requirements of training, experience, and physical stamina for this course. The plaintiffs further claim that Murley's actual dive experience was being rapidly outpaced by the classroom training and certification credentials being issued by the defendants.

According to the defendants, Murley conducted approximately forty training dives at the Gilboa Quarry in Ohio as part of his technical diving training, which was apart from his initial recreational diving training. He also performed three deep technical dives in the ocean off Pompano Beach, Florida for his Advanced Trimix course. Murley completed a number of confined water practice sessions and various [ Page 4]

tests and quizzes as part of his ongoing technical diving training.

As part of the registration process for the Advanced Trimix course, Murley signed three liability release and express assumption of risk agreements. The defendants assert that these releases were executed specifically for a trip to the shipwreck of the Italian ocean liner Andrea Doria, which is located approximately 100 miles to the east of Montauk, New York and lies below 240 feet of water. The first release was for his TDI technical scuba diving certification and was entitled "GENERAL LIABILITY RELEASE AND EXPRESS ASSUMPTION OF LIABILITY" in large bold-printed letters across the top of the document. It was signed on April 18, 1999 and provides, in pertinent part, as follows:

I, [Christopher Murley], hereby affirm that I have been advised and thoroughly informed of the inherent hazards of technical scuba diving activities.
Further, I understand that diving with compressed air, oxygen enriched air (ntrox), oxygen, or trimix supplied by standard open circuit scuba, semi-closed or fully closed circuit rebreathers involves certain inherent risks including, decompression sickness, embolisms, oxygen toxicity, inert gas marcosis, marine lief injuries, or other barotrauma/hyperbaric injuries can occur that require treatment in a recompression chamber. I further understand that open water diving trips, which are necessary for training and certification, may be conducted at a site that is remote, either by time, distance or both, from such a recompression chamber. I still choose to proceed with such instructional dives in spite of the possible absence of a recompression chamber in proximity to the dive site.
I understand and agree that neither by instructor(s) [Joe Jackson], the facility through which I received my instruction, [CDC], [ Page 5]
Technical Diving International, nor any of their respective employees, officers, agents, or assigns, nor the authors of any materials, including texts or tables expressly used for TDI training and certification, (herein referred to as "Released Parties") may be held liable or responsible in any way for any injury, death, or other damages to myself or my family, heirs, or assigns that may occur as a result of my participation in this diving class or as a result of the negligence of any party, including the Released Parties, whether passive or active.
In consideration of being allowed to enroll in this course, I hereby personally assume all risks in connection with said course, for any harm injury or damage that may befall me while I am enrolled as a student of this course, including all risks connected therewith, whether foreseen or unforeseen.
I further agree to save, defend, indemnify, and hold harmless said course and Released Parties from any claim or lawsuit by me, anyone purporting to act on my behalf, my family, estate, heirs or assigns, arising directly or indirectly out of my enrollment and participation in this course including both claims arising during the course or after I receive my certification even if such claims may be groundless, false or fraudulent.
I also understand that technical diving activities are physically strenuous and that I will be exerting myself during this diving course, and that if I am injured as a result of heart attack, panic, hyperventilation, oxygen toxicity, inert gas narcosis, drowning, etc. that I expressly assume the risk of said injuries and that I will not hold the above listed individuals or companies responsible for the same, and I agree to defend, indemnify, and hold harmless said course and Released Parties for any such injuries occurred by me.
I further state that I am already a qualified and certified scuba diver from the following training agencies: [PADI], and that I hold training to the level of [Advanced]. I am aware of the required certification level and/or experience necessary and recommended to enroll in this diving course and I stipulate I meet those requirement for prior certification. I have been a certified diver since [1998] [ Page 6]
and have been diving for [1 1/2] years for a total of [130] dives to a maximum depth of [140] feet.
I understand that the terms are contractual and not a mere recital, and that I have signed this document of my own free act. Further that I understand and agree that, in the event that one or more of the provisions of this agreement, for any reasons, is held by a court of competent jurisdiction to be invalid or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision hereof, and this agreement shall be construed as if such invalid, illegal or unenforceable provision or provisions had never been contained herein.
It is my intention of [Christopher Murley] by this instrument to exempt and release my instructors [Joe Jackson], and others —, the facility, through which I received my instruction [CDC], and Technical Diving International, and all other related entities and released parties as defined above, from all liability or responsibility whatsoever for personal injury, property damage, or wrongful death however caused, or arising out of, directly or indirectly, including, but not limited to, the negligence of the Released Parties, whether passive or active. I have fully informed myself of the contents of this liability release and express assumption of risk by reading it before signing it on behalf of myself and my heirs.
Murley initialed each paragraph acknowledging he had read it and signed on the signature line. In addition, he wrote that he had been a certified diver since 1998 and had been diving for 1 ½ years with a total of 130 dives to a maximum depth of 140 feet.

The second document Murley signed for this expedition was dated May 20, 1999 and entitled "Technical Deep Diving Registration." It states, in pertinent part:

Diving beyond the no-decompression limits and using mixed gases is not for every diver. You have requested to join this expedition and understand and accept all RISKS, HAZARDS, and RESPONSIBILITY of [ Page 7]
deep diving. Being a good diver is only a part of the dive. You must be mentally and physically prepared to make dives of this magnitude.
By signing this document, [Christopher Murley] hereby voluntarily releases, discharges, waives, and relinquishes Cincinnati Diving Center, Steven Bernstein, Joseph P. Jackson, and all officers, agents, and employees of Cincinnati Diving Center from any and all actions or causes of action for personal injury, property damage, and/or wrongful death, or otherwise, occurring to him/herself arising as a result of engaging in the aforementioned activities incidental thereto, whenever, wherever, and however the same may occur.
By signing this document, [Christopher Murley] hereby agrees that under no circumstances will he, or his heirs, executors, administrators, or assigns prosecute any claim for personal injury, property damage, and/or wrongful death, or otherwise, against Cincinnati Diving Center, Steven Bernstein, Joseph P. Jackson, and/or any officers, agents, or employees of Cincinnati Diving Center for any of said causes of action.
The undersigned hereby assumes all risks arising out of or pertaining to his/her participation in the aforementioned activities, and enters into this Agreement with the express intention of exempting Cincinnati Diving Center, Steven Bernstein, Joseph P. Jackson, and/or any officers, agents, or employees of Cincinnati Diving Center from any and all liability for personal injury, personal damage, and/or wrongful death, or otherwise, caused by NEGLIGENCE or otherwise. . . .
That same day, May 20, 1999, Murley executed a final comprehensive release directed to Deep Explorers, Inc., TDI, and the dive vessel Seeker, as well as its captain and crew, including defendants Crowell and Samulski. The document was entitled "DEEP EXPLORERS, INC. LIABILITY RELEASE" and contained similar language as the release signed on April 18, 1999. The third release, which was both notarized and signed by Murley, contains the following language: [ Page 8]
Initial each number section to which you agree. Print the word "VOID" in the space provided for initials if you do not agree, or if the statement is inaccurate, untrue, or you do not understand the intent of the statement.
1. It is my intention by this instrument to give up my right to sue Deep Explorers, Inc. IANTD, TDI/SDI, and their officers, agents, servants, and/or employees, whether specifically named or not, and it is also my intention to exempt and relieve Deep Explorers, Inc. IANTD, TDI/SDI and their officers, agents, servants, and/or employees and to hold these entities harmless from any liability for personal injury, property damage, or wrongful death caused by negligence or gross negligence and I agree to assume all risk in connection with my scuba diving activities.
2. I am a certified diver and have been taught and understand that scuba diving has inherent risks and dangers associated therewith including, but not limited to, decompression sickness, embolism, equipment failure or malfunction, acts of fellow divers, depletion of the diver's breathing gas supply, becoming lost or disoriented at depth, becoming entangled or entrapped by objects on the sea floor or wreck, onset of sudden illness at depth, or other perils of the sea which could cause injury or drowning, and I SPECIFICALLY ASSUME SUCH RISKS. I also understand that breathing gases other than air, diving deeper than 130 feet, and conducting dives requiring mandatory decompression, only increase these inherent risks, and I have received training specifically to aid me in managing these increased risks.
3. Within the last year, I have conducted wreck dives well in excess of 130 feet and I am familiar with the extensive preparation necessary to conduct such dives and understand that I am solely responsible for such preparation. OR I am currently enrolled in a technical diving course and I will be making my certification dives on these trips under the supervision of my instructor.
4. I am physically fit for deep technical scuba diving and I will not hold any of the above named persons or entities responsible should I be injured as a result of heart problems, lung problems, or other illnesses or medical problems which might occur while diving, or [ Page 9]
aboard the diving boat.
7. I will be present at and attentive to the safety briefing given by Deep Explorers, Inc., their officers, agents, servants, and/or employees, and if there is anything that I do not understand or am not in agreement with, I will notify Deep Explorers, Inc., and the boat Captain immediately.
9. I understand that I have a duty to plan and carry out my own dive and to be responsible for my own safety and should I elect to dive with a buddy, it is to be an arrangement solely between that buddy and myself. Deep Explorers, Inc., IANTD, TDI/SDI, and their officers, agents, servants, and/or employees are not responsible for providing me with a diving partner or in any way coordination my dive with another diver.
10. I fully understand and am fully aware that the dive boat is extremely limited in its rescue and emergency medical response capabilities and that the dive site is in a remote location. As a result, in the event of illness or injury, rescue and/or appropriate medical assistance may be significantly delayed and I could sustain further serious injury, possibly resulting in death, from this delay.
11. I fully understand that it is my responsibility to make my family aware, as I am, that scuba diving, especially when conducted deeper than 130 feet, is an ultra-hazardous activity and to accurately portray to them the risk of my injury or death.
13. I have been given an opportunity to review this document with both my family and legal counsel.
14. It is my intention that this document be admissible in any and all legal proceedings, or lawsuits, that might arise from my scuba diving activities. [ Page 10]
15. I have read and understand the foregoing in its entirety. I agree to the terms and conditions of each of the initialed, numbered sections above on behalf of myself, my heirs, and my personal representative.
Murley initialed every paragraph, filled in his name, permanent address, and signed the release.

Before the trip to the Andrea Doria, Murley had completed all the course requirement for his TDI Decompression Procedures, Extended Range Diver, and Advanced Trimix Diver courses offered by CDC and taught by Jackson. This included both classroom work and all open water dives. However, the defendants contend that although Murley had written on the April 18, 1999 release that he had made a total of 130 dives to a maximum depth of 140 feet, Murley actually had fewer than 100 dives, which was TDI's minimum for enrollment in Advanced Trimix, and had been diving as deep as 206 feet at the time he signed the release agreement. As such, the defendants claim that Jackson did not issue to Murley his advanced Trimix certification card before the Andrea Doria trip because he was concerned that Murley's enthusiasm and over-aggressiveness might outpace his abilities. At a deposition, Jackson stated that he believed that by not issuing Murley his certification card until after he successfully dived the exterior of the Andrea Doria, he would be able to give Murley more supervised experience on the wreck. Jackson further stated that while the dives to the Andrea Doria were planned to provide Murley with experience to receive the Advanced Trimix certification, he did not require Murley to perform mandatory deep [ Page 11]

diving skills as part of an in-water test for his certification. Jackson stated that his plan was to monitor Murley and see how he performed while demonstrating the deep diving techniques necessary for diving under conditions such as those presented at the wreck site of the Andrea Doria.

According to the plaintiffs, Murley had only a total of 70 logged dives to his credit and had been scuba diving for only thirteen months when he signed the April 18, 1999 release. The plaintiffs assert that the defendants knew or should have known that Murley lacked the experience to be enrolled in the advanced technical diving course. Furthermore, the plaintiffs state that although Jackson asserts that he did not issue to Murley an advanced Trimix certification card, Samulski testified at her deposition that she received a TDI Diver Registration Form, dated July 1, 1999, which stated as follows: I (Joe Jackson) certify that the above named students (Christopher B. Murley) have completed the TDI training course indicated (Advanced Trimix) and have reached the proficiency level required by TDI standards before issuing these certifications. . . ."

On July 17, 1999, Murley joined a group of divers from CDC for two planned back-to-back trips to the Andrea Doria aboard the dive vessel Seeker. Due to poor weather, the Seeker went instead to the wreck of U-835, a German submarine sunk off Block Island, Rhode Island, in approximately 130 feet of water, where Murley made a single dive. Two days later, the Seeker left for a second trip to the Andrea Doria with a total of ten passengers and crew on board. On July 20, ...


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