_,I

COURT- OF NEW YORK

DUTCI C()l INTY
Present:
I-Ion. JAMES V. BRA OS
'
ARLENE individuall y and as
Administratrix of the ESTATE 0 1: .JOHN OSTER I IOUDT.
Plaintiffs
-against-
ATIONAL ASSOCIATION Of UNDERWATER
INSTRUCTORS, rNC.. SCUBA. INC' ..
RALPH GIGLIO, DANA GIGLIO, JEFFREY ll ArNJ:S.
and MICHAEL NEGRIN,
Defendants.
Justice.
AND ORDER
Index No: 6099/2011
The following papers were read and considered on the moving defendants' summary
judgment motion.
NOTICE OF MOTION FOR SUMMARY JUDGMENT
AFFIRMATION IN SUPPORT OF MOTION FOR SU lftvJARY .J UDGMENT
EXHIBITS A-L
MEMORANDUM OF LAW
AFFIRMATTON rN OPPOSITION
EXHIBITS A-R
PLAINTIFF'S AFFIDAVIT IN OPPOSITION
EXHIBIT A
MEMORA OUM OF LAW
REPLY AFFJRM/\TION fN SUPPORT OF MOTION fOR JUDGMENT
EXHIBITS M-S
This action arises out of the wrongful death of John Osterhoudt allegedly caused by the
defendants' negli gence during an open water scuba dive. Plaintiffs claims against Nati onal
Association of Underwater Instructors. Inc. C-' AUi'') \\ere discontinued \Yith prejudice by
st ipulati on dated January 28. 20 14. Regional Scuba. fnc .. Ralph Ciglio. Dana Gigl io .. kffrcy
llaines. and Mi chael Negrin (colkcti vcly. the "Regional Dc.:!cndants' ' ) riled a motion for
summary judgment which. by court order el ated February 26. 2014. was deemed premature
pending completion of discovery. Counsel have represented that discovery has 110\\ been
completed, and the motion is ripe for determination on the papers pre\'iously submitted.
Choice ol' I ,aw:
Counsel agree that New York lavv shal l apply lo procedural iss ues. Regional Dclcndants
claim that the court should apply Cali fo rni a law to substant ive issues based on the origin or the
on line scuba dive instructions and the choi ce of Jaw provision in the signed release and \\ai\'er or
liability. They allege that in the event the court appli es Pennsylvania law based on the location or
the scuba di, e incident (citing 16 USCA 457), Pe11 nsylvani a law recognizes the enfo rceabil ity or
choice of' law provisions in releases. and thus the courl should apply Cali !'ornia l<.m in
accordance therewith.
Plaintiffs contend that the court shoul d apply New York law to substantive issues. They
al lege that California and Pennsylvani a do not have sufficient contacts wit h this litigat ion. si nce
Cal ifornia-based company NAUI is no longer a part y to thi s matter and the Regional Defe ndants
have fail ed to submit sul'fi cicnt evidence demonstrati ng the dive occurred ,,ithin the borders or
Pennsylvani a. Plaintiff states New York appli es based on the 01 the rema ining
parties. and argues the applicabil ity of General Obli gations Lav; deems li abi lity releases
as void against public pol icy.
It is clear that plaintiffs enlisted the instructi onal services or California-based company
lAUl , whi ch provided online instructional scuba courses and arranged Cor an open water
instructi onal dive to be supervised by Regional Scuba. Plainti ffs also executed the liabil ity
releases wherein they agreed that any di sputes ari sing therel'rom shal l be governed by California
law (Opp. Ex . P i!3). Even if the court were to accept plaintiffs ' posi tion. ew York's General
Obligations Law 5-326 is inappli cahle since it pertains to liability releases invoh ing
recreational establi slm1ents such as " pool, gymnas ium. pl ace of amusement or recreat ion or
si mi lar establishment" (lei.). In contrast. the primary purpose for the plaintiffs agreement \\ith
AUl was for instructional scuba dive lessons incl udi ng an open dive coursework component
test ing their practi cal skill s under the supcnis io1 1 or a cenified scuba instructor (see Verified
Complaint i!I6, 38. 39; Opposition fa:. D. E. F) . as opposed to a recreati onal scuba di\'e
excursion for leisure purposes (see GOL 5-326. Lu rl ey v. Deep Explorers. Inc., 281 F. Supp. 2d
580. 590 [E. D. N. Y .. 2003 j , Baschuk v Diver's Way Scuba, 209 A. 0 .2d 369. 370 [2"'
1
Dept.
1994]. Accordingly, Cali forn ia law governs the substanti ve issues in accordance with the choice
or law provision or the liability releases signed by plaintiffs (see ' ecll oyd Lines B.V. , .. Superior
Court, 3 Cal. -l-
1
1i 459, 466 [Cal. 1992 J(absent a connict or law. the court shal l enforce the parties'
choice of la\\).
Summary Judgment:
California Code of Civil Procedure 437(c) requi res the trial court to grant summary
judgment if no triable issue exists as to a materi al foct. and if the papers submi tt ed on the motion
entitle the moving party to judgment as a matter ol'lm,. Upon such showing; thc_burdcn shil'ts to
the plaint iff to sho\\', by producing evidence of' spcc ili c that a triable issue or mmerial fact
e:x ists as to the cause of' action or the del'ense (A!d.u ilar v. /\ tlanti c Ri chfi eld Co .. 25 Cal. 4th 826.
849 [2001]). Cali fo rnia law recognized the enforceability of liabil ity waivers that clearly and
unequivocally express the parti es' intention to exculpate a tortfeasor f'rom li ability for future
negligence (Madison v. Superior Court, 203 Cal. /\pp.3d 589, 597 [ 19881). such as the n: lcases
s igned by pl ainti ffs releasi ng AUL Regional Scuba. lnc., Ralph A. Gigli o. and their
')
employees/agents from any claims of negli gence and wrongful death, with the except ion or
''gross negli gence", "intentional , wanton or wi llful misconduct" (see Pl ai ntiffs' Oppos it ion Ex.
P). The releases also state that the plaintiffs expressly assume the inherent ri sk associated wi th
scuba diving. including those ri sks posed by a remote di ve locati on (lei .).
Notvvithstanding the loregoing, plaintiffs have raised issues or l ~ l L regarding whether the
Regional Defendants' conduct rose to a level or gross negligence' , ' intenti onal. wanton or
will Cu l mi sconduct" which is an express exception to the liability release and beyond the scope
of ordinary inherent ri sks involved in a dive covered by the assumption of risk doctrine. Arlene
Osterhoudt testified that she and her deceased husband discussed the medi cal questi onnaire with
Ralph Gigli o, who allegedl y instructed them not to disclose the deceased's medical condition (A.
Osterhoudt Affid. In Opp. i1s, Depo. p. 21-22). The record rai ses issues of !"act as lo whether the
Regional Defendants, having full knowledge that plainli ffs were l"irst-t ime open \Va ler divers.
\-Ve re grossl y negligent in scheduling the di ve during the winter with icy conditi ons in rough
\;>,'aters; in allegedly fail ing to properl y supervise the dive and maintain the novice divers within a
reasonably safe distance; and by instructor Ralph Gigi lio leaving the dive within one minute due
to the lack of appropriate weight anchorage in his diving sui t to sustain him underwater ror the
di ve. There are al so issues of fact regarding causation since the medi cal examiner deemed the
cause of the dcccdenf s death as an accident al drowning. and the Regional Defendants did not
submit any f'urther expert medical opini on that the di ving conditions did not cause or contri bute
to the drowning.
As regards plaintiffs' negligent infliction of emotional di stress on her own accord and as
a bystander witnessing her husband's fail ed ascent from the di ve. there are issues of fac t as to
whether any of the aforementi oned conduct of the Regional Defendants consti tutes wrongful
conduct that would foresceably cause distress to J\dene Osterhoudt (see genernlly Austin v.
Terhune, 367 F. Jd 11 67, 1172 W1i Cir. 2004]1.setti ng forth elements for a direct claim of
negligent infliction of emotional distress]; see also Burgess v. Superior Court, 2 Cal. 4
1
1i 1064,
I 073 [Cal. 1992][setting forth the elements for a bystander' s cl aim of negligent infli cti on of
.emotional distress]).
The record is devoid or any all egations suffi cient lo pierce lhc corpora le vei I to ho ld
Haines or Negr in or Dana Gigli o personall y li able for thei r act ions in their offi cial capaci ty as
employees/agents of Regional Scuba, and thus such cl aim against Haines. egrin. and Dana
Giglio indi vidual ly are dismissed. In contrast, plai ntiffs have raised issues of fact regarding
Ralph Gi gli o's potent ial personal liabili ty based on his alleged medical questionnaire
instructions (A. Osterhoudt Affid. In Opp. iis, Depo. p. 2 1- 22).
On the bas is of the fo regoing. it is hereby
ORDERED that the plainti ffs' claims against Haines. cgri n. and Dana Giglio
individuall y are di smissed, since plaintiffs have not stated a legal basis to hold them personall y
liable for their acts within the scope of the employment/agency relati onship with Regional
Scuba. [t is f'urther
..,
.)
ORDERED that in all other respects, the Regional Defendants s ummar) j udgmenL
motion is deni ed: and it is Curthcr
ORDUH:: l) that a pretrial conli .. -rL nce shal l be held lrn September 12, 20 1-1 at
9:15/\M.
Counsel arc reminded that jury selection is scheduled for January 5, 2015 al I 0:00/\M.
The foregoing constitut es the decision and order of' this court.
Dated: /\ ugust I J . 20 14
Poughkeepsie. New York
Jeffrey W. Padil la. Esq.
Padilla & , ssociates. PLLC
Attorneys for Plaintiffs
845 Third A venue, 6
1
" Floor
New York, NY 10022
Alton .l . Hal l. [sq.
Dcl isc & I lall
Attorneys for Plaintiff Arlene Osterhoud t
5 16 2 I '
1
S trcct
Covington. Louisiana 70433
Kennet h Stenger. Esq.
Stenger, Roberts. Davi s & Diamond. I .i ,P
Attorneys for the Regional Defendants
11 36 Route 9
Wappingers Falls, NY 12590
David G. Concannon, Esq.
Law OITi ccs or David C]. Concannon. LLC
/\ttorncys l'or the R..'.g ional Dcknd,mts
200 Road. Sui te 116
Wayne. Pennsylvania 19087
LN' l LR:
/
'dh __
V. BRANDS, J .S.C.
Pursuant lo CPLR Section 5513. an appeal as or right must be taken \\' ithin thirty days after
scr\'i cc b; a part y upon the appell ant or a copy or the judgment or order appealed form and
\\'rittcn noti ce or its entry. except that" hen the appc: l lant has sen-eel a copy 01 the judgment or
order nnd ' ' rittcn not ice of its cntr.) . the appeal must be tal-.en '' ithin thirt: days thcrcor
vVhen s ubmitting motion papers to Judge Brands' Chambers, please do not submit any
copies. Submit onl y the original papers.