SAN DIEGO (CN) — A federal judge refused to dismiss a case from a diver who claims a drunken dive instructor feeding sharks led a mako shark directly to her, and it bit her.
Elke Specker says she suffered severe and permanent injuries in the June 13, 2015 attack.
The defendants’ attorney, however, told Courthouse News that his client was not drunk, and that Specker was not even bitten by the shark.
Specker sued dive instructor Michael Kazma, Mako Shark Diving, Yellow Charter Boat and the vessel Cetus Specula in November. The case was filed in Federal Court, which has jurisdiction on admiralty and maritime claims.
Specker says she paid for a shark-diving expedition that Kazma advertised as a “safe out-of-cage experience with mako and blue sharks in San Diego.”
The mako shark can grow up to 10 feet long and weigh 300 lbs. Also known as the bonito shark, it is the fastest shark in the world. It has been recorded swimming at 46 mph, and can jump as high as 30 feet.
Specker claims Kazma was drunk while feeding sharks, and “improperly and negligently” directed divers to an unsafe area. She says Kazma held the bait so it “led the shark directly” to her, and she was bitten on the calf.
Specker’s attorney Jorge Lopez, with Jorgensen & Salberg, told the judge Wednesday that his client was wearing a 7-millimeter thick wetsuit when she was bitten, “so you can imagine how sharp and strong the bite was.”
U.S. District Magistrate Judge Nita Stormes found that Specker’s claims passed the locality test required by maritime law, as she was attacked while scuba diving in navigable waters off the coast of California.
For a maritime claim to survive a motion to dismiss, it must also pass the relationship test, showing a connection between the incident and maritime activity.
Stormes found the shark bite had the potential to disrupt maritime commerce if another boat had to be diverted to offer first aid. Stormes also found the vessel Cetus Specula was engaged in “traditional maritime activity,” so all defendants will be subject to maritime jurisdiction.
“All defendants benefited from Specker paying a fee to travel in a boat in the ocean to a location where the dive leader guided her and others on a cage-free expedition with sharks. Her activity, and consequent injury, depended on the relationship of the parties; she could not have participated in the activity if any of the four named parties were absent,” Stormes wrote.
Lopez said the motion to dismiss for lack of jurisdiction “was a bit of a stretch, considering the incident occurred off a boat off the coast of San Diego.”
“If the motion was successful, it would have greatly impacted the case and forced us into state court. Luckily, the judge got it right and saw it the way we did,” Lopez wrote in an email.
Adam Jaffe, who represents Kazma and the Mako diving company, told Courthouse News that his client was not drunk, and that Specker was not even bitten by the shark.
Jaffe said he has a video from an unrelated third party, which shows that a mako shark did not bite Specker, but that she “sustained a laceration” when her leg was sliced after the shark’s mouth got caught on her wetsuit as it tried to escape.
“She had an interaction with a wild animal that turned bad, but she was not bitten,” Jaffe said.
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