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Monday, May 27, 2024 | Back issues
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Emotional Distress Case Fails After Scuba Death

(CN) - A woman who watched her brother drown while they were scuba diving off Catalina Island cannot revive claims against an equipment maker, a California appeals court ruled.

Robert Myers had signaled to his sister, Barbara Fortman, that he wanted to ascend just minutes into their dive. Instead of ascending to the surface together, however, Myers stopped kicking, and the pair sank to the ocean floor.

Fortman tried again to resurface, and halfway through the ascent, the air regulator fell out of Myers' mouth. He was taken to the USC Hyperbaric Dive Chamber where he was pronounced dead.

Though Fortman allegedly thought her brother had suffered a heart attack, an investigation soon revealed that his scuba equipment had malfunctioned.

Specifically, a plastic flow-restriction insert became lodged in Myers' regulator, preventing him from breathing underwater.

Fortman and Myers' heirs sued the manufacturer of the insert, Forvaltningsbolaget Insulan AB dba SI Tech, for negligent infliction of emotional distress, or NIED.

A Los Angeles county judge granted SI Tech summary judgment, and Division Three of the Second Appellate District affirmed Thursday, citing Thing v. La Chusa, a 1989 decision from the California Supreme Court.

"We are bound by the limits to bystander recovery that the Supreme Court has articulated in Thing, which requires a contemporaneous perception of what caused the injury," Justice Richard Aldrich wrote for the court.

"To be sure, personally observing a loved one suffer injuries that result in his death can be emotionally devastating, irrespective of whether one is contemporaneously aware of the precise etiology of the loved one's death," he added. "Nonetheless, Thing drew a line by limiting the class of potential plaintiffs in NIED cases, precluding recovery when the bystander lacks contemporaneous awareness of the injury-producing event."

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