Frost v. Eco Dive Center, et al.

Result: Motion for Summary Judgment/Adjudication granted, following a Court of Appeal writ of mandate

Facts: This was a heavily contested case involving the death of a 53 year old scuba diving student who died while participating in an Advanced Open Water Diver course. Our client was the decedent’s scuba instructor. Our defense medical experts opined that the decedent had a cardiac event in the water just after passing the surf zone. He was pulled out of the water by other divers, and died several hours later at the hospital. The plaintiff is the decedent’s wife, who contends that the dive should not have taken place to begin with, because of unfavorable surf conditions.

Our client never knew of the decedent’s pre-existing medical conditions because he failed to disclose those conditions on the required Divers Medical Questionnaire. The decedent inaccurately responded “no” to each question on the Questionnaire. Had the decedent accurately answered, our client would not have let the decedent participate in the dive.

We filed a motion for summary judgment which was initially denied by the trial court. We then filed a petition for writs of mandate, essentially asking the Court of Appeal to perform a fresh review of the motion for summary judgment. The same week that we filed our writ petition, the Court of Appeal (Second Appellate District, Division Five) issued an alternative writ, stating that it “tentatively concludes that there is no triable issue of material fact as to whether defendants’ conduct constituted gross negligence.”

The alternative writ, being more of a tentative ruling, was not yet an official order to the trial court judge to reverse herself. However, because alternative writs are not commonly issued, it was a strong indication from the Court of Appeal that they would rule in our favor. The alternative writ gave the trial court judge two options: 1) either reverse herself and grant our motion for summary judgment on her own accord; or 2) a hearing would be held by the Court of Appeal to determine why the Court of Appeal should not order the trial court to grant our motion. The trial court chose the first option, held a supplementary hearing on our motion to allow due process to the plaintiff, then granted our motion and entered judgment in our client’s favor.

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