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Rasmussen v. Bendotti8/21/2001
To hold a defendant liable for negligence, the plaintiff must show that the defendant proximately caused the plaintiff's injury . Crowe v. Gaston, 134 Wn.2d 509, 514, 951 P.2d 1118 (1998). Proximate cause is generally a question of fact. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999). Here, the trial court, sitting as the fact finder, found that any negligence on the part of Eugene Bendotti was 'too attenuated' from Bonny Jo Bendotti's death to hold Gene legally liable. Gene was Bonny's scuba diving buddy. He failed to properly attach a power inflator to his buoyancy compensator. This required an emergency ascent. Bonny then drowned after her equipment became entangled in a rope. We conclude that the trial court's finding is adequately supported by the evidence, and affirm the judgment dismissing Cully, Adam, and Brandy Jo Rasmussen's wrongful death suit.
FACTS
Our factual summary here follows the trial court's unchallenged findings of fact, including those denominated as conclusions of law. Hagemann v. Worth, 56 Wn. App. 85, 89, 782 P.2d 1072 (1989). We refer to Mr. and Mrs. Bendotti as Gene and Bonny. We intend no disrespect by doing so. We use their first names simply for clarity and ease of reference.
Bonny and Gene were married in 1990. They got interested in scuba diving and completed the necessary scuba certification in April 1996. Their training included an open water dive course and an advanced open water dive course.
In the fall of 1996, the Bendottis were asked to help recover a snowmobile from Lake Wenatchee. They agreed to help. On October 4, they made one or two dives, located the snowmobile in approximately 100 feet of water, and marked it with a 50-foot line.
The Bendottis returned to Lake Wenatchee on November 2. At first they were unable to locate the snowmobile or marker line. They located the snowmobile during the second dive and marked it with a longer line and buoy. They then broke for lunch and refilled their air tanks. After the third dive, the Bendottis and others with them decided to try to attach a line to the snowmobile to drag it from the lake. Both descended for their fourth dive.
Gene had, however, inadvertently failed to reconnect his power inflator to his buoyancy compensator. A power inflator inflates a buoyancy compensator which then allows the diver to rise to the surface. And '{b}ecause he and Bonny did not adequately perform buddy and self-equipment checks, it was not discovered.' Clerk's Papers (CP) at 561. Once in the water, Gene discovered the equipment problem and immediately surfaced. Bonny, however, became entangled in a rope at the 40-foot level 'perhaps while ascending herself.' CP at 561. She was unable to disentangle herself and drowned.
Cully, Adam, and Brandy Jo Rasmussen are Bonny's children. They sued Gene on behalf of themselves and Bonny's estate. The court denied Gene's motion for summary judgment and heard the matter without a jury.
The court concluded that Gene owed a duty to Bonny as her scuba diving 'buddy.' Left unstated, but easily inferable given the court's other conclusions, is the finding that Gene breached that duty by failing to reconnect his power inflator. The court then goes on to conclude that because Gene's failure to reconnect his power inflator was an emergency, he acted as a reasonably prudent diver when he ditched his weight belt and ascended. It also concluded that Gene's duty to Bonny terminated because of this emergency. The court then held that the Rasmussens 'failed to prove by a preponderance of the evidence any breach of duty by Gene to Bonny occurring prior to Gene facing his own personal eme
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