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Case of Drowned Maui Snorkler Advances

HONOLULU (CN) - A signed liability waiver doesn't necessarily bar a woman from suing for negligence after her husband died on a Maui snorkeling excursion, a federal judge ruled.

Mark Strickert, 50, of Austin, Texas, died in 2014 when he was unable to return to the tour boat owner and captain Charley Neal's snorkel and dive boat during a fast-moving storm over their location at Molokini Crater. Strickert was snorkeling with his wife, plaintiff Mary Strickert, and their two minor children.

Six scuba divers and six snorkelers were in the water for 30 minutes when "a freak storm rolled in and hit like a wall, 40-60 mph winds, rain, and 8 to12-foot breaking waves," Neal wrote in a Facebook post after the incident. "So, everyone wants to know what happened yesterday. I owe an explanation," he wrote.

Mary Strickert filed a maritime wrongful death suit, claiming negligence and gross negligence against Neal, Molokini Divers, Nealco International doing business as Scuba Shack and Neal's vessel Double Scoop.

But the defendants moved for summary judgment, arguing that the negligence claim is barred by a waiver Mark Strickert signed before embarking on the tour and the gross negligence claim had no legs because Mary Strickert didn't offer evidence of the defendants' culpability in the accident.

Last month, U.S. District Judge Derrick Watson of the District of Hawaii declined to dismiss the suit, finding triable issues of fact in both of Mary Strickert's claims.

After finding admiralty jurisdiction applied in the case, Watson agreed that the release Mark Strickert signed - a Professional Association of Diving Instructors "Discover Scuba Diving Participant Statement" - applied to scuba diving only, not the snorkeling Mark Strickert was doing at the time of the storm.

"Defendants' position, however, raises the question of whether snorkeling is similar enough to scuba diving and skin diving to be encompassed by the release agreement. The court concludes that this is a question of fact," Watson wrote.

The judge also noted that Mark Strickert had not initialed a key section of the release which read, "It is my intention by this instrument to exempt, release, and hold harmless Scuba Shack and all related entities as defined above from all liability whatsoever for personal injury, property damage, and wrongful death caused by negligence."

That omission and the ambiguities in the release prevent dismissal at this stage in the case, Watson said.

As to the gross negligence claim, Watson found that triable issues as to whether Neal's conduct during the storm amounted to gross negligence warrant continuing with the proceedings.

"Allegations that Mr. Neal was aware that Mr. Strickert was visibly in distress in the open ocean and that despite plaintiff's repeated pleas to Mr. Neal to assist her husband, Mr. Neal, for at least several minutes, stood and 'did nothing' to assist Mr. Strickert suggest an 'indifference to a present legal duty and utter forgetfulness of legal obligations so far as other persons may be affected,'" Watson wrote, citing Hawaii case-law.

Furthermore, the opinions of weather and boating experts included in Mary Strickert's complaint persuaded the judge that "the circumstances surrounding Mr. Strickert's death are sufficient to raise a triable issue as to causation," he wrote.

"Drawing all inferences in favor of plaintiff, a jury could reasonably conclude that Mr. Neal's decision to proceed with the scuba-and-snorkeling excursion on July 20, 2014, despite the National Weather Service announcements, and his failure to immediately respond to the snorkelers, including the decedent, who were in visible distress, displayed "'such a gross want of care and regard for the rights of others as to justify the presumption of willfulness and wantonness,'" Watson wrote.

After mooring at Molokini Crater, two of the Double Scoop's crew members led six passengers on a scuba dive, while the Strickert family and two other passengers entered the water to snorkel.

Neal remained alone aboard the Double Scoop when the weather worsened, causing extremely high wind and waves as a 50-knot squall blew into Molokini.

All six scuba divers and two crew members made it back to the vessel safely. Of the snorkelers, Mary Strickert, her daughter, and another passenger returned safely.

Neal "could also see the three snorkelers in trouble in the water, waiving for help," Mary Strickert says in the complaint. She also says she "repeatedly asked" and "pleaded for Neal to go into the water to help them, but he would not go," claiming he could not until the scuba divers were up."

As Mary Strickert and her daughter watched, her son and another snorkeler were swept by a large wave toward some rocks that they then scrambled up while Mark Strickert disappeared from her vision. He did not to make it to the rocks or back to the vessel, despite efforts of crewmembers, according to the complaint.

One of the crew attempted a rescue by tying a rope around her waist to swim out to those in danger, but the rope caught in the propeller and severely injured her. The Coast Guard recovered Strickert's body near the shoreline and determined he had drowned.

"There have been several hate mails, threats, phone calls, emails and posts on Facebook coming to us about greed and stupidity, none of which is right, appropriate or appreciated," Neal wrote in his Facebook post describing the accident.

"It was by far and away the worst day of my life. But it was far worse for others involved," he added.

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